JUDGMENT 1. By this common judgment, D.B. Criminal Appeal No. 596/2005 preferred by Shree Ram and Gopi and D.B. Criminal Appeal No. 647/2005 instituted by Ramphool Gurjar shall be decided together. 2. All the three appellants are brothers being Son of Shyodan. They have been tried by the Court of Additional Sessions Judge, (Fast Track) No. 3, Ajmer Camp, Kishangarh and vide impugned judgment dated 30th June, 2005, Sriram appellant was substantively convicted for offence under Section 302 IPC and was sentenced to life imprisonment and pay a fine of Rs. 2000/- and in default of payment thereof, to further undergo six months simple imprisonment. He was also sentenced for offence under Section 447 IPC to undergo three months simple imprisonment and for offence under Section 323 IPC to undergo one year simple imprisonment and pay a fine of Rs. 500/- and in default thereof, to undergo simple imprisonment for one month. Ramphool and Gopi were convicted with aid of Section 34 for offence under Section 302 IPC and also for offences under Sections 447 and 323 IPC and they were also awarded the same sentence which was awarded to Shree Ram which already stand noticed by us, above. 3. In the present case, deceased before his death had made a statement to ASI Ramdayal Singh, PW-14 who was posted at Police Station, Madanganj Camp Kishangarh. The statement made by deceased Ramlal has been treated by the trial Court as dying declaration. Ramlal stated that he was illiterate. He used to append his thumb impression and was engaged in grazing of sheep as a shepherd. He used to sleep in a bada with sheep. On 8th October, 2013 in the evening, after tying the sheep in bada, and after taking his meals at about 9.30 P.M., he was sitting when appellants namely; Ramphool, Gopi and Shree Ram being sons of Shyodan came on a motor cycle armed with wood. Ramphool gave an injury with a stick on the left foot and Gopi on the right foot. Shreeram gave an injury on the right hand and one lathi blow on the head. After causing the injuries, they left the spot. 10-15 minutes later, Devkaran Gurjar and Lalaram Bagariya came at the spot and they brought injured to Government hospital. 4. Ramphool gave an injury with a stick on the left foot and Gopi on the right foot. Shreeram gave an injury on the right hand and one lathi blow on the head. After causing the injuries, they left the spot. 10-15 minutes later, Devkaran Gurjar and Lalaram Bagariya came at the spot and they brought injured to Government hospital. 4. ASI Ramdayal Singh, PW-14 stated that he recorded the statement of the deceased word by word as it was narrated by him. 5. On the basis of above said FIR, a charge sheet was submitted. The appellants alongwith charge sheet were sent for trial. The charge sheet was committed to the Court of Sessions and was entrusted for trial to the Court of Additional Sessions Judge, Fast Track, No. 3, Ajmer Camp, Kishangarh. The appellants were charged for the various offences. They pleaded not guilty and claimed trial. 6. Prosecution in all examined 21 witnesses. The statement of the accused-appellants were recorded under Section 313 Cr.P.C, they denied all the incriminating circumstance put to them and had pleaded false implication. 7. Devkaran PW-1 was attracted at the spot after the information was relayed to him by Lalaram, PW-15 his employee. Devkaran stated that he reached at the spot. Devkaran had allegedly taken deceased to the hospital. He further stated that Ramlal had also narrated the incident to him in consonance with his statement recorded by Sub-Inspector, Ramdayal Singh, PW-14. 8. Ramkaran PW-3 son of Devkaran had also stated that he had witnessed preparation of the site plan. In cross-examination, this witness admitted that he alongwith his employee Lalaram was engaged in the agriculture work and he cultivated the fields whereas his father was supervising the agriculture operations. 9. Laxman PW-5 stated that at hospital his father had stated that all the three appellants had caused injuries. To similar effect is the statement of another son of deceased Raju PW-6. Smt. Kamla PW-7 wife of deceased had also stated that deceased had told him that all the three persons had caused injuries. 10. 9. Laxman PW-5 stated that at hospital his father had stated that all the three appellants had caused injuries. To similar effect is the statement of another son of deceased Raju PW-6. Smt. Kamla PW-7 wife of deceased had also stated that deceased had told him that all the three persons had caused injuries. 10. Counsel for the appellants has drawn our attention to statement of Lalaram, PW-15 who had first relayed the information to Dev Karan, PW-1, though Lalaram had not supported the prosecution case and had turned hostile, he had stated in the Court that Dev Karan on the day of occurrence, was not present at the fields, as according to him, works on the fields were being looked after by son of Devkaran namely Ramkaran PW-3. 11. Prosecution also examined the witnesses who had participated during investigation regarding recovery, seizure of the clothes, Chappal etc. of the deceased and preparation of the site plan. 12. We need not notice the details of investigation. Suffice it to say that autopsy on the dead body of deceased was conducted by Dr. Ashutosh Srivastava. Autopsy on the dead body of Ramlal was performed on 9th October, 2003. Witness PW-18 had found one injury on the head, another injury on the right elbow and on the left hand and left leg of the deceased. 13. On 10th October, 2003 at 4.45 P.M. Dr. RK Jain, PW-16 had found one abrasion and stitch wound on person of Ramphool, accused appellant. 14. In the present case, occurrence had taken place on 8th October, 2003 at 9.30 P.M. Statement of the deceased was recorded on 8th October, 2003 at 11.40 P.M. at Government hospital. On the basis of the said statement formal FIR was registered on 9th October, 2003 at 12.45 A.M. and special report on 9th October, 2003 at 4.45 P.M. was received by Additional Chief Judicial Magistrate, Kishangarh. 15. On the basis of the said statement formal FIR was registered on 9th October, 2003 at 12.45 A.M. and special report on 9th October, 2003 at 4.45 P.M. was received by Additional Chief Judicial Magistrate, Kishangarh. 15. Learned counsel for the appellants having half-heartedly assailed the dying declaration on the ground that deceased could not speak, later, has left the argument on specific query put by us that not only Devkaran PW-1 who is an independent witness being neighbour but wife and sons of the deceased have also stated that deceased had conveyed to them that all the three accused had caused injuries, has contended that he will urge the case of two appellants Ramphool and Gopi who have been convicted with aid of Section 34 IPC. He has submitted that complainant has widened the net and has involved all three brothers as the one who had participated in the occurrence. 16. Shree NS Dhakad, Learned Public Prosecutor for the State has submitted that all the three accused came on a motor cycle in the night about about 9.30 P.M., therefore, Section 34 of Indian Penal Code is attracted in the facts and circumstances of the case. 17. We have given our thoughtful consideration to the rival submission advanced before us. As it was stated earlier, occurrence in the present case had taken place on 8th October, 2013 at about 9.30 P.M. The statement of the deceased Ramlal was recorded on 08th October, 2013 at about 11.40 P.M. FIR was registered on the basis thereof, on 9th October, 2003 at about 12.45 A.M., Special Report reached the Area (Ilaka) Magistrate on 9th October, 2003 at about 4.45 P.m. Delay of 16 hours in reaching of the Special Report after registration of case and delay of thirty hours after the occurrence, has not been satisfactorily explained. Thus, we cannot rule out that delay in the present case, has been used for consultations and deliberations to inflate the number of the accused. It is to be noted that deceased in the FIR itself has stated that Ramphool and Gopi had caused injury on the right foot and left foot respectively. It is required to be noted by us that nature of all injuries is blunt and can be caused by one weapon. It is to be noted that deceased in the FIR itself has stated that Ramphool and Gopi had caused injury on the right foot and left foot respectively. It is required to be noted by us that nature of all injuries is blunt and can be caused by one weapon. Even if, we assume that all the three accused came with a common intention but we cannot fathom as to why Ramphool and Gopi who were armed with same weapon had opted to cause injury on the non-vital parts of the body that too on the lowest part of the body i.e. foot of the deceased. Thus, the delay in itself put us on guard to sift the grain from the chaff. As a matter of abundant caution, we cannot rule out that injuries have been caused by one person as weapon used is one. Thus, false implication of appellants Ramphool and Gopi cannot be ruled out. 18. Hence, we are of the view that it is not safe to uphold the conviction of appellant Ramphool and Gopi with aid of Section 34 IPC. We shall extend benefit of doubt to two appellants Ramphool and Gopi taking the delay in lodging of the FIR, nature of injuries assigned, role attributed and nature of weapon into consideration. 19. Consequently, as a result of above discussion, D.B.Criminal Appeal No. 647/2005 preferred by Ramphool is accepted and D.B.Criminal Appeal No. 596/2005 is party accepted qua Gopi appellant and is dismissed qua Shree Ram as the dying declaration categorically attributed fatal injury to him and the same has been duly corroborated by the testimony of PW-1 Devkaran, PW-5 Laxman, PW-6 Raju and PW-7 Kamla. 20. Hence, judgment of conviction and order of sentence qua appellants Ramphool Gujrar and Gopi is set aside and they are acquitted of the charges. Appeal of Shree Ram is dismissed, while affirming conviction and sentence awarded upon him by the trial Court. *******