SHRIHARI P. DAVARE, J.:- Heard the respective Counsel for the parties. 2. By the present two Appeals, the appellants i.e. Original accused No. 1 - Vilas @ Hari Om Tatoba Ghag and accused No.3 Dilip Ramchandra Suryavanshi (hereinafter referred to as "the accused" for the sake of brevity), have taken the exception to the conviction and sentence imposed upon them for the offence punishable under Section 302 read with Section 34 of IPC and directing them to undergo imprisonment for life and directing the accused No.1 to pay fine of Rs.3,000/- and also directing the accused No.3 to pay fine of Rs. 1,000/- by Judgment and order dated 12th March, 2004 rendered by the learned Addl. Sessions Judge, Greater Mumbai, in Sessions Case No.1349 of 1995. Admittedly, accused No.2 Angad Malkhansingh Mahajit was expired during the trial and the case against him was abated. 3. Briefly stated, the case of the prosecution is that the alleged incident occurred on 23.10.1993. When the victim Prabhakar Sawant was driving his autorickshaw, PW-l Chandrakant Govalkar, PW-2 Dhanaji Dhopate and PW-5 Babu Patel accompanied with him and when they came in front of “Laxmi Hotel" at Shivaji Nagar on Daftary Linking Road, Malad, a massive assault was committed upon victim Prabhakar probably by three persons, who were armed with sword and choppers and they thrashed the roof-top over the head of autorickshaw driver and tore it apart. Due to the said attack, the said autorickshaw collided with an electric pole and thereupon Prabhakar Sawant got out of the said autorichskaw and started running away from the spot, but the assailants chased him and they chopped him with sword and choppers causing multiple injuries on his legs, hands, and a huge injury on his head. Resultantly, Prabhakar fell down in an injured condition on the spot in front of Laxmi Hotel. At this juncture, Police Head Constable PW-3 Dinkar Bhimaji Rokde and Police Naik PW-8 Vasant Vithal Kale were on patrol duty at the mosque in Islampura area due to tense situation on account of Kashmir Hazrat Baug Dargah and they were not far away from the place of occurrence of the incident. Hence, nearby people ran towards them and informed them about the incident. Thereupon, both the said police personnel arrived at the spot and found that victim Prabhakar Sawant was in injured condition. Hence, nearby people ran towards them and informed them about the incident. Thereupon, both the said police personnel arrived at the spot and found that victim Prabhakar Sawant was in injured condition. PW-4 Fulgensingh Umrao Singh, Proprietor of Laxmi Hotel, in front of which the aforesaid incident took place, had allegedly witnessed the assailants assaulting on victim Prabhakar with sword and choppers. Due to the said incident, nearby shop-owners and restaurants put their shutters down. It is also alleged that PW-6 Saraswatibai, mother of Prabhakar Sawant, learnt about the said incident of assault on her son through some boys and as such she also rushed to the spot. According to her, victim injured Prabhakar stated before PW-3 Dinkar Rokde and PW-8 Vas ant Kale the reasons for causing injuries to him and the persons who had caused the said injuries and names of the said assailants were disclosed i.e. Angad (accused No.2), Dilip accused No.3 and Vilas @ Hari Om (accused No.1) respectively. Thereafter PW-3 Rokde and PW-8 Vasant Kale both personnel put the injured Prabhakar in an autorickshaw and was removed to Asha Hospital. According to the prosecution, while proceeding towards Asha Hotel, victim Prabhakar made the oral dying declaration before PW-3 Dinkar Rokde, that the three persons i.e. Hari Om, Angad and Dilip i.e. accused Nos. I and 3 and deceased accused assaulted him by chopper. After reaching Asha Hospital, initial medical treatment was given to him, but as per advice, he was shifted to Cooper Hospital for further treatment by an ambulance and was admitted to I.C. Unit. It is the case of the prosecution that since Prabhakar was not in a condition to speak anything about his injuries, API Jadhav (PW-10) recorded the statement of PW-3 Dinkar Rokde and names of the assailants were figured in the said statement coupled with the cause of injuries. Thereafter, an offence was registered under Section 307 read with Section 34 of IPC against the accused herein and the deceased accused under C.R. No.534-93. Accordingly, the criminal law was set into motion and the investigating agency i.e PW10 API Jadhav and API Nadaf PW-9 proceeded to the incident and drew the panchnama and seized the blood samples fallen on the spot and also the autorickshaw at the spot. One wrist watch of Titan Company was found with the blood and also the slippers (Hawai chappals) thereunder Ex.38. One wrist watch of Titan Company was found with the blood and also the slippers (Hawai chappals) thereunder Ex.38. PW-10 API Jadhav recorded statement of PW-4 Fulgensingh i.e. proprietor of Laxmi Hotel and his relative i.e. Somnath Kurmi and also recorded statement of PW-1 Chandrakant Govalkar, PW-2 Dhanaji Dhopate and PW-5 Babu Patel, being eye-witnesses to the occurrence of the incident and also recorded statement of PW-8 Vasant Kale. Thereafter, PW-9 API Nadaf took charge of investigation and received the clothes of the injured and also recorded statements of witnesses. On 23.10.1993 at about 5.30 p.m., the victim Prabhakar Sawant succumbed to the injuries at Cooper Hospital and his dead body was sent at Addl. Coroner's Court, Juhu for post-mortem. PW-7 Dr. Vanmore performed the post-mortem thereon who noticed external and internal injuries on the said dead body who recorded the probable cause of death of the victim as hemorrhage shock due to multiple injuries (unnatural) and produced the P.M. Notes at EX.23. Thereafter, PW-11 API Parab took over the charge of further investigation on 26.5.1995. Meantime, accused No.1 Vilas Ghag and Dilip Suryavanshi were arrested Their identification parade was conducted on 2.6.1995 by S.E.M. Sitaram Jadhav and they were identified by the identifying witnesses PW-1 Chandrakant Govalkar, PW-2 Dhanaji Dhopate, PW-6 Saraswatibai and also by PW-5 Babu Patel. On 3.7.1995, the accused No.3 Dilip made a voluntary statement before the police personnel to show the place where the weapons were concealed and their statement was recorded in presence of panch as at Exhibit 35. Thereafter, he led the police personnel and panchas and choppers articles 1 and 2 were recovered from the place shown by the accused No.3 Dilip Suryavanshi and same were seized under a recovery panchnama Ex.35. The seized articles were sent to C.A. Office for examination purpose along with a forwarding letter dated 13.7.1994. Accordingly, after completion of investigation, PW-11 Parab filed charge-sheet against the accused before the Addl. Chief Metropolitan Magistrate, 24th Court Borivali, Mumbai. Since the charge thereunder was exclusively triable by the Sessions Court, it was committed to the Court of Sessions, Greater Mumbai on 14.11.1995. Thereafter, C.A. Reports dated 21.8.1994 and 8.9.1994 were received and the same are produced. Accordingly, after completion of investigation, PW-11 Parab filed charge-sheet against the accused before the Addl. Chief Metropolitan Magistrate, 24th Court Borivali, Mumbai. Since the charge thereunder was exclusively triable by the Sessions Court, it was committed to the Court of Sessions, Greater Mumbai on 14.11.1995. Thereafter, C.A. Reports dated 21.8.1994 and 8.9.1994 were received and the same are produced. The C.A. Report of blood samples of accused No.3 Dilip Suryavanshi disclosed his blood group as "B" and C.A. Report of blood sample of accused No.1 Vilas Hari disclosed is blood group as "0" whereas the seized articles i.e. wrist watch, half pant, shirt, chaddi and full pant bore human blood of "A" Group and blood stains and other articles were inconclusive/unsuitable. Thereafter, the learned Addl. Sessions Judge framed the charge against the accused No.1 and accused No.3 on 1 0.6.2003 (since accused No.2 expired) for an offence punishable under Section 302 read with Sec. 34 of IPC at EX.5. However, the accused Nos. 1 and 3 herein pleaded not guilty to the charge levelled against them and claimed to be tried. To substantiate the charges levelled against the accused, the prosecution examined as many as 12 witnesses as mentioned below :- PW-1- Chandrakant Govalkar - eye-witness - turned hostile. PW-2 - Dhanaji Laxman Dhopate-eyewitness - turned hostile. PW-3 - Dinkar Bhimaji Rokade - Police Head Constable before whom Prabhakar Sawant allegedly made oral dying declaration who also lodged the complaint/FIR at EX.18 dated 23.10.1993. PW-4 - Fulgen Singh - Proprietor of Laxmi Hotel- independent witness. PW-5 - Babu Bhagu Patel-independent eyewitness. PW-6 - Saraswati Sawant - mother of victim Prabhakar. PW-7 - Vasant Vanmore - who performed the autopsy on the dead body of Prabhakar. PW-8 - Police Naik Vasant Kale accompanied with PW-3 Dinkar Rokade but not supported the oral dying declaration made - turned hostile. PW-9 -API Badruddin Nadaf - I.O.-1 PW-10 -PI Tanaji Jadhav I.O. - 2. PW-11 - API Mahadev Parab - I.O. - 3. PW-12 - Sitaram Jadhav Special Execuive Magistrate who conducted the T. I. Parade. 4. The defence of the accused Nos. 1 and 3 is of total denial. Both the said accused neither examined themselves on oath nor examined any defence witness. PW-11 - API Mahadev Parab - I.O. - 3. PW-12 - Sitaram Jadhav Special Execuive Magistrate who conducted the T. I. Parade. 4. The defence of the accused Nos. 1 and 3 is of total denial. Both the said accused neither examined themselves on oath nor examined any defence witness. Considering the oral, documentary and medical evidence on record and also after considering the rival submissions made by the learned Counsel for the parties, the learned trial Court found accused Nos. I and 3 guilty and convicted and sentenced as mentioned hereinabove. Being aggrieved and dissatisfied with the said conviction and sentence, they challenged the same by filing the present appeals and prayed for quashment thereof and consequently acquittal of the appellants herein. 5. The learned respective Counsel for the accused Nos. 1 and 3 have argued that the learned trial Court has grossly erred while convicting and sentencing accused Nos. 1 and 3. They have submitted that the trial Court has not appreciated the evidence in proper perspective and committed grave error while convicting the accused Nos. 1 and 3, According to the learned Counsel for accused Nos. 1 and 3 both PW-1 Chandrakant Govalkar and PW-2 Dhanaji Dhopate are the eyewitnesses, but have not supported the case of prosecution, and therefore, they were declared hostile and even nothing could be elicited from the questions put to them in the form of cross-examination by the learned APP, and consequently, their testimonies were not believed by the learned trial Court. So is the position with regard to the deposition of PW-8 Police Naik Vasant Kale, who also has not supported the case of prosecution although being police witness and he was also cross-examined by learned APP, but nothing beneficial to the case of prosecution could be extracted therefrom, and he has not supported the proposition put forth by the prosecution in respect of the oral dying declaration allegedly made by the victim Prabhakar. The learned Counsel for the appellants further submitted that the testimony of PW-4 Fulgensingh and PW-5 8abu Patel are not of any aid and assistance to the case of the prosecution since they have not supported the prosecution case, although they were not declared hostile. They further submitted that there is no dispute about homicidal death of victim Prabhakar as per the testimony of PW-7 Vanmore Autopsy Surgeon. They further submitted that there is no dispute about homicidal death of victim Prabhakar as per the testimony of PW-7 Vanmore Autopsy Surgeon. They further stated that the evidence of T.I. Parade adduced by PW12 Sitaram Jadhav and recovery of the articles at the instance of the accused were not believed by the learned trial Court. In substance, the learned Counsel for the accused submitted that the only incriminating evidence against the accused is of alleged dying declaration made by victim Prabhakar before PW-3 PHC Dinkar Rokade and the evidence of PW-6 Saraswati Sawant i.e. mother of the victim but the said evidence is not sufficient to connect the accused with crime. It is submitted that the evidence of oral dying declaration is admittedly a very weak type of evidence and there are discrepancies, deformities and contradictions in that respect and. therefore, the oral dying declaration is also suspicious and same cannot be accepted and believed to base conviction against accused Nos. 1 and 3. 6. To substantiate the aforesaid contentions, the learned Counsel relied upon the Judgment of the Supreme Court in the case of Waikhom Yaima Singh vs. State of Manipur (2011) 13 SCC 125 : [2011 ALL MR (Cri) 2048 (S.C.)]. In paras 19 and 20, it was observed as under :- "19. It is also to be seen that the deceased was very seriously injured, so much so that according to the witnesses, he died immediately after allegedly making the said dying declaration, the time of which is not fixed by the prosecution. The most important circumstance about this dying declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make such a dying declaration. "20. There can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly reliable, voluntary and truthful and further that the maker thereof must be in a fit medical condition to make it. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. The oral dying declaration is a weak kind of evidence, where the exact words uttered by the deceased are not available, particularly because of the failure of memory of the witnesses who are said to have heard it. In the present case also, the exact words are not available. They differ from witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, Dr. Ningombam Shyamjai Singh (PW12) was also not cross-examined by the Public Prosecutor in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement." 7. The Division Bench of this Court in the case of Chandar s/o Laxman Rakhunde & Anr. vs. The State of Maharashtra 2012 ALL MR (Cri) 859 observed in para 23 as follows :- "23. Dying declaration is a statement of a person, who is dead and therefore, cannot be examined as a witness. The truth of the statement can be vouched only by that person i.e. the declarant and not by the witness to whom it was made. The witnesses can only say that such a statement was made by the dying person. Therefore, to hold a dying declaration as reliable, the Court must be satisfied regarding two aspects, viz., that witnesses, who say that the deceased made a particular statement are reliable and trustworthy, and further, the version of the deceased, as reflected in the said statement i.e. dying declaration, is also reliable and trustworthy. In case of oral dying declaration, of which no record has been made by the concerned witness, it would be still more difficult to place implicit reliance on the dying declaration, because the accuracy of the statement, made by the deceased, may be affected in the reproduction of it, by the witnesses." 8. Accordingly, the learned Counsel for the accused submitted that solitary piece of evidence of alleged dying declaration made by victim Prabhakar before PW-3 Dinkar Rokade is not creditworthy and no credence can be given to it, and therefore, it deserves to be discarded, and consequently, the present Appeals deserve to be allowed and urged that the conviction and sentence imposed upon the accused Nos. 1 and 3 be quashed and set aside and they be acquitted for the offences with which they were charged. 9. The learned APP countered the said arguments and opposed the present appeals vehemently and submitted that PW-4 Fulgen Singh is an independent eye-witness, who supported the case of prosecution, and hence, his testimony is required to be believed. It is also canvassed by the learned APP that the oral dying declaration made by Prabhakar before PW-3 Dinkar Rokade categorically connects the accused Nos. 1 and 3 with the crime which is the clinching piece of incriminating evidence against accused Nos. 1 and 3 since it has not been shaken in cross-examination and the learned trial Court has rightly accepted and believed it while convicting the appellants herein. Moreover, the learned APP also canvassed that the evidence of PW-6 Saraswatibai i.e. victim's mother also involves the accused Nos. 1 and 3 in the crime. Moreover, from the testimony of PW-7 Dr. Vas ant Vanmore, we find that victim Prabhakar met with the homicidal death. Accordingly, in substance, the learned APP submitted that the learned trial Court has assessed and appreciated the evidence before it in proper perspective and has not committed any glaring mistake while convicting the accused Nos. 1 and 3 and hence no interference is called for in the impugned judgment and order dated 12.3.2004 and therefore, urged that the present Appeals be dismissed. 10. In order to advert to the submissions advanced by the learned Counsel for the parties, it is useful and necessary to refer to the material evidence adduced/produced by the prosecution and in the said context, coming to the deposition of PW-7 Vasant Vanmore, he has stated that he was attached to Addl. Coroner's Court, Juhu as a Medical Officer and on 23.10.1993, dead body of one Prabhakar Sawant was brought from Dindoshi Police Station and he performed the post mortem thereon at 1.30 p.m. on the same day. He noticed following external injuries on the said dead body :- "1. Sutur wound over left peritooccipital region of skull 10 cm long total 10 sutures present. 2. Cut I.W over right arm later to medial aspect 9 cm long 5 cm width bone deep injury muscles nerves cut bone right numerous cut. 3. Cut I.W. over right forearm 10 cm long and 10 cm width right bone radioulna cut muscles nertes cut. 4. 2. Cut I.W over right arm later to medial aspect 9 cm long 5 cm width bone deep injury muscles nerves cut bone right numerous cut. 3. Cut I.W. over right forearm 10 cm long and 10 cm width right bone radioulna cut muscles nertes cut. 4. I.W. Over right thigh anteriourly 8 cm long 3 cm width muscle deep. 5. I.W. over right knee jt. 4 em above knee jt. 5 cm long I cm width muscle deep. 6. I. W. Over right knee jt. Just below patella 15 cm loong 4 cm width right tibia fibula cut the depth of injury 7 cm. 7. I. W. Over right shin of Tibia 8 cm loong and 3 cm width right tibia cut injury 3 cm deep. 8. I W. Over right foot medial aspect 10 cm width bone muscle deep. 9. I. W. Over left ankle jt. 6 cm long 4 cm width bone muscle deep. 10. I. W. over left knee jt. Laterally 5 cm long 2 cm width bone deep (2 cm). . 11. I. W. Over left forearm laterally 7 cm. Long 4 cm width and 2 deep muscles cut nerves cut. 12. I. W. over left arm 6 cm long 4 cm width and 2 cm deep right humerus bone cut. 13. Small I.W. over left arm2 cm long and 1 cm width muscle deep. 14. Abrasions two of size 4 cm x 1 cm size over left glutial region." All the said injuries were ante-mortem. He also noted corresponding internal injury to the external injury to the Sr.No.1 which is mentioned in column No.19 of p.M. Notes. The injury was hematoma of the scalp present, fracture of occipital bone, subdural haemorrhage at the occipital region. In his opinion, the cause of death was heamorrhage and shock due to multiple injuries. He also stated that external and corresponding external injuries were sufficient to cause death in the ordinary course of nature collectively as well as individual1y except by injury No.14. He also further stated that all he said injuries were possible due to sharp edged weapon like chopper, sword etc. Articles 1 and 2 were shown to him and he stated that injuries are possible with the said weapons. Accordingly, he tendered P.M. Notes at EX.23. He also further stated that all he said injuries were possible due to sharp edged weapon like chopper, sword etc. Articles 1 and 2 were shown to him and he stated that injuries are possible with the said weapons. Accordingly, he tendered P.M. Notes at EX.23. In cross-examination, he stated that it is quite possible heavy heamorrage must have been caused because of loss of blood from the injuries. Sometimes the victim may go in coma due to heavy heamorrage. Thus, from the testimony of PW-7, there cannot be any dispute that the victim Prabhakar Sawant met with homicidal death( unnatural). 11. PW-3 Police Head Constable Dinkar Rokade has stated that he was deputed on duty at beat No.3 in the area of Kurar Gaon Village along with PW-8 Police Naik Vasant Kale due to tense atmosphere on account of Hazrat Baug Darga and they reached Islampur at 9.45 a.m. At this juncture, somebody informed them that one injured person was lying in front of Laxmi Hotel in Kurar Village near the road leading to Bhim Nagar. Hence, both of them went to the spot and found that one young person was lying in injured condition in front of Laxmi Hotel. Hence, they called autorickshaw and since he was able to speak, they put questions to him and thereby he gave his name as Prabhakar Sahadeo Sawant and also stated the names of three assailants, viz. Hari Om, Angad and Dilip Suryavanshi - accused No. 1, the deceased accused and accused No.3 respectively, who assaulted him by chopper and caused him injuries. On enquiry, he further stated that the assailants had enmity with his brother Pappu Sawant. Accordingly, they reached him to Asha Hospital and thereafter removed him to Cooper Hospital as per advice in an ambulance. Thereafter, he stated that his report was reduced to writing and same was treated as FIR Ex.18. In cross-examination, he stated that on the relevant date i.e. 23.10. I 993, he was not having any pocket diary with him and was not aware whether Constable Kale was having pocket diary on that day, although they were supposed to keep pocket diary with them. He further stated that he was about 15 to 17 ft. Away from Laxmi Hotel and PW-8 P.C. Kale was with him on the spot. However, he stated that he took about 15 minutes to reach the spot. He further stated that he was about 15 to 17 ft. Away from Laxmi Hotel and PW-8 P.C. Kale was with him on the spot. However, he stated that he took about 15 minutes to reach the spot. He further stated that he did not notice any commotion in front of Laxmi Hotel while he was on patrolling at the spot. Pertinently, he had gone to check the injured and asked him about the cause of injury to him. There was 0 talk between the injured and doctor from Asha Hospital. He also stated that he had not informed to his superior about the assailants when he talked to them on telephone. He also did not see anybody from his relations when Prabhakar was lying in an injured condition at the spot till he could be removed in the hospital. The spot panchnama was not drawn in his presence. Hence, a suggestion was given to him that he falsely stated that injured Prabhakar had stated names of 3 assailants to him, but same was denied by him. It was also suggested to him that Prabhakar was not in a condition to speak and tell but the same was denied by him. The entire tenor of the testimony of PW-3 excludes the possibility of giving oral dying declaration by the injured Prabhakar to him involving the accused Nos. 1 and 3 in that crime. 12. PW-8 Vasant Kale has stated in his deposition that on 23.10.1993 at about 10.30 a.m. or 10.45 a.m. When he was duty along with PW-3 Rokade, same members of public came to them and informed that one injured was lying in front of Laxmi Hotel. Hence, they rushed to the spot and found that a person was lying in a pool of blood in injured condition. He had sustained injuries on head, both hands and legs. Therefore, they put the injured in an autorickshaw and removed him to the hospital. He also stated that when the said injured was put into an autorickshaw, he was unconscious. He further stated that he was praying for to save saying "Vachawa Vachawa". His statement was recorded by PSI Jadhav verbatim. He also stated that it did not happen that the injured had stated his name to them. He had also not stated anything about the names of the assailants or caused the injuries to him. He further stated that he was praying for to save saying "Vachawa Vachawa". His statement was recorded by PSI Jadhav verbatim. He also stated that it did not happen that the injured had stated his name to them. He had also not stated anything about the names of the assailants or caused the injuries to him. He further stated that he had not stated the names of the assailants. Hence, the said witness was declared hostile since he did not support the prosecution. The learned APP put questions to him in the form of cross-contamination, but nothing beneficial to the case of prosecution could be elicited therefrom. 13. Coming to the testimony of PW-6 Saraswatibai, mother of victim Prabhakar. She stated that she had three sons and one daughter. The eldest was Atmaram, the youngest was Suresh and the middle son was Prabhakar. She knows the accused Vilas Ghag and Dilip and identified them in the Court stating that they reside in the same locality where she resides. She further stated that her son was murdered about 10 years back and she had seen the assault committed on him. She further stated that her son Prabhakar was returning home in his autorickshaw on the date of incident, but he was assaulted by present accused who were sitting in the dock and pointed finger towards accused Nos. 1 and 3. She further stated that she came to know about the same when her injured son was in Asha Hospital. She also stated that she came to know about assault on Prabhakar at about 11.30 a.m. She also stated that this she could know from the members of the public who had come running to her house after the incident. Hence, she immediately rushed to the spot where Prabhakar was lying and she lifted Prabhakar from the spot with the help of two more persons and removed him to Asha Hospital and from there Prabhakar was removed to Cooper Hospital, but at 5.30 p.m. Prabhakar succumbed to his injuries. She further stated that police personnel recorded her statement about the incident. She also attended the I.T. Parade and identified accused in police station. 14. In cross-examination, she stated that she met police personnel first time in Asha Hospital after the incident. She further stated that police personnel recorded her statement about the incident. She also attended the I.T. Parade and identified accused in police station. 14. In cross-examination, she stated that she met police personnel first time in Asha Hospital after the incident. She went running to the spot and found that number of people had gathered around when Prabhakar was lying in injured condition and two persons had accompanied with her. She further stated that she was present when Prabhakar was lifted from the spot and removed to Cooper Hospital and till the time he died. She further stated that her son stated to her the names of accused persons as assailants in the presence of police. She also stated that her daughter-in-law Hetal, wife of Atmaram, had come with her and she was with them in the autorickshaw by which Prabhakar was taken to Asha Hospital. Even she was there in the hospital, and accordingly, Saraswatibai introduced the said new theory and falsified the testimonies of PW-3 Rokade and PW-8 Vasant Kale. 15. That takes us to the deposition of PW-4 Fulgen Umrao Singh, Proprietor of Laxmi Hotel, who stated hat on 23.10.1993, he was in his hotel at 11.00 a.m., and standing at Cash Counter and saw one autorickshaw was moving on the road and two persons committing assault on autorichaw driver. The assailants tried to commit an assault from right side. They possessed big weapons. They tried to commit assault with sword on the roof of autorickshaw. The driver of auto rickshaw tried to come out and run away from the autorickshaw. In the process, auto rickshaw dashed against the electric pole. The auto rickshaw driver fell on the ground. The injured had received injuries on his hands and legs. Due to the aforesaid incident, the shutters and shops were closed down in panic. After 15 minutes, he opened the hotel and saw that injured was lying on the spot and nobody was around him. After the lapse of about 15 minutes, he noticed police personnel arrived on the spot. The injured was dead. Police removed him in an auto rickshaw. He was called to Dindoshi Police Station and his statement was recorded in which he gave description of the assailants, but he could not identify the accused in Court. After the lapse of about 15 minutes, he noticed police personnel arrived on the spot. The injured was dead. Police removed him in an auto rickshaw. He was called to Dindoshi Police Station and his statement was recorded in which he gave description of the assailants, but he could not identify the accused in Court. In cross-examination, he stated that he had seen 4 to 5 persons around the spot and they were in uniform. He also saw two policemen taking injured in an autorickshaw. Accordingly, he stated that injured was dead which is contradictory to the statement of PW-3 Dinkar Rokade, PW-8 Vasant kale and PW-6 Saraswati. He however, could not identify the accused in the Court. Hence, his testimony cannot be of aid and assistance to the case of prosecution. 16. Insofar as the testimony of PW-5 Sabu Patel is concerned, he has stated that he has not seen the injuries caused to Prabhakar in the assault and even he has not seen the assailants and he even did not identify the accused in identification parade as well and, therefore, the said testimony deserves to be discarded. 17. We have perused the ocular evidence, documentary evidence and medical evidence adduced/produced by the prosecution and heard the submissions advanced by the learned Counsel for the parties anxiously and also perused the judicial pronouncements cited by the learned Counsel for the appellants carefully and at the outset as noted hereinabove, considering the testimony of PW-7 Vasant Vanmore, there cannot be two opinions that victim Prabhakar Sawant met with homicidal death (unnatural). Admittedly, the eye-witnesses' account i.e. testimonies of PW-1 Chandrakant Govalkar and PW-2 Dhanaji Dhopate did not support the case of the prosecution, and therefore, they were declared hostile. Although the learned APP put questions to them in the form of cross-examination, nothing beneficial to the case of prosecution could be extracted therefrom, and hence, the learned trial Court rightly disbelieved the said evidence. Moreover, the evidence of T.I. parade and the recovery of articles was also not believed by the learned trial Court. Insofar as the testimony of PW-4 Fulgen Singh is concerned, since he could not identify the accused in the Court, his testimony is of no help to the prosecution. Hence, only evidence remains against the accused is the alleged oral dying declaration made by victim Prabhakar before PW-3 Dinkar Rokde and PW8 Vasant Kale. Insofar as the testimony of PW-4 Fulgen Singh is concerned, since he could not identify the accused in the Court, his testimony is of no help to the prosecution. Hence, only evidence remains against the accused is the alleged oral dying declaration made by victim Prabhakar before PW-3 Dinkar Rokde and PW8 Vasant Kale. However, pertinently, PW-8 Vasant Kale who is police personnel he did not support the case of prosecutior, and hence, the prosecution declared him hostile and even he got cross-examined by learned APP, but nothing useful to the case of prosecution could be elicited therefrom. In fact, he has stated in his deposition that when the injured was put into auto rickshaw, he was unconscious which excludes the possibility of giving oral dying declaration by him. Although he stared in his cross-examination conducted by the accused that some blood was stuck to their clothes while they lifted the injured to put him in autorickshaw but since their cloths were not taken charge of, it rules out the possibility of presence of PW-3 Dinkar Rokde and PW-8 Vasant Kale. 18. Insofar as testimonies of PW-3 Dinkar Rokde, PW-6 Saraswati and PW-8 Vasant Kale are concerned, it is material to note that PW-3 Dinkar Rokde has given the time of his presence at Islampur at 9.45 p.m., whereas PW-8 Vasant Kale has stated the said time as 10.30 or 10.45 a.m. Pertinently PW-3 Dinkar Rokde stated that his report i.e. FIR was recorded on the spot whereas the Investigating Officer PW-10 Tanaji Jadhav stated that the said FIR was recorded in the hospital. Pertinently PW-3 Dinkar Rokde stated in his deposition that when he received information about the injured he was standing on Daftary Road. He was 15 to 17 feet away from Laxmi Hotel, but he further stated that it took about 15 minutes to reach him to the spot. Hence, it is curious to note that PW-3 required 15 minutes to cross the distance of 15 to 17 feet and there is no plausible explanation from the prosecution in respect of the said anomaly. PW-3 further stated in his deposition that PW-8 Vasant Kale was with him on the spot, but he further stated that he had gone alone with the injured. PW-3 further stated in his deposition that PW-8 Vasant Kale was with him on the spot, but he further stated that he had gone alone with the injured. PW-6 Saraswati deposed that even her daughter-in-law Hetal and wife of Atmaram had come with her and she was with them in the auto rickshaw by which Prabhakar was taken to Asha Hospital and she was there in the hospital which is totally contradictory to the version of PW-3 Dinkar Rokde. Pertinently, neither the statement of Hetal was recorded nor she was examined by the prosecution. 19. According to PW-3 Dinkar Rokde, he had alone gone with the injured and he had asked the injured when they were in auto rickshaw about the cause of injuries to him and thereupon he allegedly made oral dying declaration involving the accused in the alleged crime. However, he admitted that he had not informed his superior about the assault when he talked to them on telephone. In the natural course of events, had the injured made any oral dying declaration before PW-3, he would have immediately informed the same to his superior officers, but it did not happen. He further stated that he has not seen anybody from the relatives when Prabhakar was lying in an injured condition at the spot till he could be removed in the hospital and the said very version of PW-3 Dinkar falsifies the case of the prosecution and excludes the possibility of oral dying declaration allegedly given by victim. 20. Pertinently, PW-6 Saraswati has stated in one part of her deposition that she had seen the assault committed on her son Prabhakar who was assaulted by the present accused and identified the accused in the Court, but in the later part of her deposition, she stated that she came to know about the assault at 11.30 a.m. from the members of public who had come running to her house after the incident and so she immediately rushed to the spot where Prabhakar was lying. Accordingly, the later part of evidence of PW-6 Saraswati falsifies her earlier part of evidence in the same deposition. Accordingly, the later part of evidence of PW-6 Saraswati falsifies her earlier part of evidence in the same deposition. She further stated that she lifted Prabhakar from the spot with the help of two persons and removed him to Asha Hospital and the said version falsifies the deposition of PW-3 Dinkar since he stated that he removed injured Prabhakar to the hospital and he had gone alone with the injured to Asha Hospital. She further stated that she was present throughout the time when Prabhkar was lifted from the spot and removed to Cooper Hospital and till the time he died and the said very version contradicts the testimony of PW-3 and excludes the possibility of giving oral dying declaration by injured Prabhakar before PW-3 Dinkar. She further stated that it was in presence of police that her son had stated to her the names of accused persons as assailants which is contradictory to the deposition of PW-3 Dinkar and PW-8 Vasant Kale and the said version of PW-6 Saraswati falsifies the version ofPW-3 Dinkar and PW-8 Kale. In substance, the solitary evidence of alleged oral dying declaration made by victim Prabhakar before PW-3 Dinkar is in doldrum, and hence, same cannot be accepted, and Consequently, the same cannot be believed. 21. Having comprehensive view of the matter, we are of the considered opinion that there are discrepancies, deformities and infirmities in the prosecution case, and hence, we are inclined to accept the submissions advanced by the learned Counsel for the accused 1 and 3 i.e. the Appellants. Accordingly, after taking the survey of the tangible evidence, the convictions and sentences imposed upon accused Nos. 1 and 3. shall not sustain and therefore, the present Appeals deserve to be allowed, quashing and setting aside the same and acquitting the accused Nos. 1 and 3 for the offences with which they were charged. 22. In the result, the Appeals are allowed. The appellants are acquitted of the charge. The appellants are directed to be set at liberty forthwith, if not required in any other crime. Ordered accordingly.