JUDGMENT Anant S. Dave, J. 1. These appeals are filed under Section 374 of Code of Criminal Procedure 1973 (for short “the Code 1973”) by appellants (original accused Nos. 1, 2, 4 and 5) who were tried for the offence punishable under Sections 302, 307, 147, 148 and 149 of Indian Penal Code by learned Additional Sessions Judge (Fast Track Court No. 1) Bhavnagar in Sessions Case No. 71 of 1998 and all the accused came to be convicted and sentence to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for six months. However, learned Judge did not impose separate sentence for the offence punishable under Sections 147, 148, 149 of Indian Penal Code and under Section 135 of Bombay Police Act. 2. That original accused No. 3 Rabari Labhu Shardulbhai was murdered during pendency of the trial and the case came to be abated qua him. 3. The short facts giving rise to file the present appeals are as under: 3.1. That as per the prosecution case, incident in question took place about 10:20 a.m. on 6th January, 1998 at the main gate of Science College (Vaghavadi Road) when the complainant, Bhogha Mera was proceeding on his Honda Motorcycle for duty to the college. When complainant entered from the main gate of the Science College, 5 accused were standing behind the gate and they made complainant to stop his motorcycle. That accused No. 1, Rabari Shardulbhai Ramsinhbhai was carrying the bucket filled with acid and he splashed acid from the bucket on the complainant and accused No. 2 Rabari Somabhai Shardulbhai, accused No. 3 Rabari Labhubhai Shardulbhai, accused No. 4 Rabhari Bhurabhai Nagabhai and accused No. 5 Rabari Panchabhai Ranabhai were having sticks in their hands. Accused No. 5 Rabari Panchabhai Ranabhai was having a sword in his hand and all of them assaulted the complainant and inflicted stick blows simultaneously. The complainant received injuries on his left wrist, both legs and right ear and acid had entered eyes of the complainant and he had fallen down. Since complainant raised alarm, one Parmanand, watchman of the college came their on his scooter and took complainant to SIR ‘T’ Hospital, Bhavnagar. The incident took place due to previous quarrel between the complainant and Shardul on account of collision of scooter. 3.2. Since complainant raised alarm, one Parmanand, watchman of the college came their on his scooter and took complainant to SIR ‘T’ Hospital, Bhavnagar. The incident took place due to previous quarrel between the complainant and Shardul on account of collision of scooter. 3.2. It is the case of the Prosecution that complainant was admitted in the hospital and Medical Officer had informed Bhavnagar ‘A’ Division Police Station. The P.S.O. Of Bhavnagar ‘A’ Division Police Station entered the information received from Medical officer as ‘Janva-Jog Entry No. 12 of 1998’ in the Station Diary. It is the Prosecution case that on receipt of this information (Exh. 92), P.S.O. Informed Police Inspector, Shri K.R. Patel who was present at the Police Station. That on receipt of the information from Sir ‘T’ Hospital he went there and contacted complainant, Bhoghbhai Merabhai who was in Burns Ward. Upon reaching at Sir ‘T’ Hospital, P.I., Shri Patel recorded the complaint of Bhoghbhai Merabhai and sent the same to the Police Station for registration of the offence and accordingly complain was registered and it is produced at Exhibit 128. 3.3. After recording the complaint, P.I., Shri Patel prepared the report for recording of the Dying Declaration and sent it to Executive Magistrate. It is the prosecution case that Executive Magistrate on receipt of Yadi form police went to Sir ‘T’ Hospital and after contacting Medical Officer proceeded to record Dying Declaration of Boghabhai Merabhai. That the recording of said Dying Declaration commenced at 12.10 a.m. and completed at 12.25 a.m., thereafter the Police Inspector, Shri Patel commenced the investigation and went to scene of offence. The Police Officer also recorded statements of other witnesses and obtained Injury certificate of one Mr. Mansinh Chauhan who had received accidental burns due to acid throwing. The Police on completion of investigation submitted Charge-sheet. 3.4. That 28 witnesses and about 31 documents were examined to substantiate the charges against the accused. That some of the witnesses of panchnamas did not support the prosecution case and they were treated hostile by the prosecution. That case of the prosecution rest not only on Dying Declaration recorded but other oral and documentary evidence in the nature of discoveries, medical evidence, F.S.L. analysis of inflammable liquid, clothes of deceased, accused etc. 3.5. That some of the witnesses of panchnamas did not support the prosecution case and they were treated hostile by the prosecution. That case of the prosecution rest not only on Dying Declaration recorded but other oral and documentary evidence in the nature of discoveries, medical evidence, F.S.L. analysis of inflammable liquid, clothes of deceased, accused etc. 3.5. The learned Additional Sessions Judge, on appreciation of evidence, came to the conclusion that the Dying Declaration and like statements of the deceased Boghabhai Merabhai were reliable and oral and documentary evidence supported the said Dying Declaration as to the cause of death of the deceased. The learned Judge, thus, convicted all four accused for the offences punishable under Section 302, 147, 148 and 149 of the Indian Penal Code, and section 135 of the Bombay Police Act. The learned Judge imposed sentences as mentioned herein above and took all the accused into custody. 4. That brief summary of medical evidence, eye witness and dying declarations, panch witnesses, police officer are as under: 5. The motive for the crime in brief and overt act as per charges are as under: “Motive for the crime: Accused No. 1 Rabari Shardulbhai Ramsinghbhai had filed complaint against Rabari Boghabhai Merabhai on 17.6.1997 for the offences punishable under Sections 307, 504 of Indian Penal Code and Section 135 of the Bombay Police Act, allegedly demand of Rs. 50,000/- for settlement of that complaint. Overt Act as per Charge: 1. Accused No. 3 Labhu Shardul and accused No. 3 Soma Shardul threw acid on the deceased Bogha Mera. 2. Accused No. 1 Shardul Ramsingh and Accused No. 4 Bhura Naga inflicted injuries by stick on hand and ear of Bhoghabhai 3. Accused No. 5 Pancha Rana inflicted sword blow to Boghabhai.” 6. In the context of the case of the prosecution as above and findings and conclusions of learned Sessions Judge at the end of the trial for awarding conviction and sentence for life, Mr. A.D. Shah, learned counsel would contend that learned Judge has seriously erred in placing implicit reliance on so called dying declarations of the deceased Bhogabhai Merabhai by attaching undue importance though they were suffering from infirmities and also mode and method of recording of dying declarations were illegal. It is submitted that there were vital inconsistency emerging from dying declarations produced on record namely complaint (Exh. 127), dying declaration recorded by Magistrate (Exh. It is submitted that there were vital inconsistency emerging from dying declarations produced on record namely complaint (Exh. 127), dying declaration recorded by Magistrate (Exh. 90) and further statements of deceased (Exh. 76). Likewise major inconsistency emerge from medical papers about disclosure of crime by the injured-complainant who later on died with injuries on his person. 6.1. That even description of place of offence, timings and weapons of assault, stick, sword and tumbler and bucket containing acid and whether it was splashed, thrown or sprinkled is not borne out. Even two persons were not named initially by the complainant whose general condition was poor though reported to be fully conscious. 6.2. It is submitted that at an extensive third degree i.e. around 70 to 80% burns are seen in both the eyes, it was not possible for complainant to disclose correct information. It is further submitted that even timings of recording of first information, sending yadi for recording, dying declarations etc. is also doubtful and even interpolation of recording timings is not ruled out in view of overwriting of certain digit. Accordingly, the dying declaration Exh. 90 is not recorded in proper format by following procedure, deserves to be rejected being not trustworthy or inspiring confidence. It is also submitted that the oral evidence of eye-witnesses does not support the prosecution case as all of them have been treated hostile. The prosecution relied upon 3 dying declarations. It is submitted that evidence of Dr. Vijaykumar Vallabhdas Sampat clearly discloses that the patient had given history of throwing of acid and assault by pipe and knife by three accused namely, Labhu Shardul, Soma Shardul and Shardul Ramji) and two other persons. Same history is recorded in indoor case paper. Exh. 121 is the certificate containing history given to Medical officer. It is further submitted that P.I. Kaushikbhai R. Patel on receipt of information about Janwajog Entry No. 12/98 received from Sir T. Hospital at 12.00 noon went to hospital and recorded complaint. According to this FIR, it is alleged that all 5 accused were behind main gate of the college and they stopped his motorcycle-Hero Honda. Accused Shardul was having bucket full of acid and he threw acid on the deceased and accused Soma Labhu, Bhura and Pancha were having sticks and that accused Pancha was having sword. According to this FIR, it is alleged that all 5 accused were behind main gate of the college and they stopped his motorcycle-Hero Honda. Accused Shardul was having bucket full of acid and he threw acid on the deceased and accused Soma Labhu, Bhura and Pancha were having sticks and that accused Pancha was having sword. All of them started inflicting blows on him which caused injuries on left hand wrist, both legs and right side ear and he fell down as acid had entered his eyes. On his shouts, watchman of the college Parmanand Khimjibhai took him to the hospital. Cross-examination of P.I. Kaushikbhai R. Patel revealed that further statement of the deceased was recorded, however, prosecution has not produced that further statement which amounts to a part of dying declaration. Further statement revealed that the accused Labhu Shardul was having tumbler filled with acid. Further statement also reveals that the accused Pancha was having stick and sword. Cross-examination of Police Officer reveals that while recording complaint due to burning pain the complainant could not give clear details about weapons and watchman Parmanandbhai had talked with the complainant due to which there was diversion of weapons possessed by them. However, after further statement he had recovered weapons from accused as detailed in the further statement. The I.O. was called upon to produce case diary in a sealed cover before the Court. 6.3. Thus, the evidence of Investigating Officer clearly establishes that the contents of FIR are not consistent with the prosecution case, inasmuch as the same were at the behest of Watchman Parmanand. This necessitated recording of further statement and the same being not produced as a dying declaration, the probable inference can be drawn that same must have been after some further deliberations. Thus, there is clear possibility of involvement of other accused who are family members. 6.4. Similarly, co-called discovery panchnama of accused Labhu Shardul pointing out the shop of Panjumal Sukhram from where it was alleged that the acid was purchased from his shop. Finding of a witness based on statement of accused cannot be termed as discovery of object and the provisions of Section 27 cannot be attracted. 7. The circumstantial evidence sought to be placed reliance on by the prosecution is relating to discovery of bucket at the instance of accused Soma Shardul. The evidence of panch witnesses is not supporting the so-called discovery. 7. The circumstantial evidence sought to be placed reliance on by the prosecution is relating to discovery of bucket at the instance of accused Soma Shardul. The evidence of panch witnesses is not supporting the so-called discovery. The evidence of the I.O. does not prima facie reveal authorship of concealment of bucket. Thus, the first part of the panchnama is not even proved by the I.O. The reference to Panchnama Exh. 69, it is clearly revealed that one tin containing 2 ml. acid was found from the scene of offence. Even reference to FIR there is no reference of using of Tin for throwing acid. Thus, the conduct of the Investigating Officer clearly revealed that he has conducted investigation by creating evidence of so-called discovery to corroborate the complaint. The act of throwing acid is attributed to accused No. 1 Shardul from bucket containing acid. The find of Tin containing acid from the scene of offence is not consistent with the contents of the complaint and hence the Panchnama about the so-called discovery by accused Soma Shardul is created. The non-support of panch witnesses and the evidence of the I.O. thus, does not prove the said discovery. There is no overt act attributed to other accused on the aspect of throwing of acid in the FIR. The reference of possessing containers of acid to accused No. 3 Labhu Shardul (tumbler containing acid) and the accused Soma Shardul (Bucket containing acid). Thus, this further statement contradicts the complaint as to the role attributed to accused No. 1 Shardul about throwing of acid from bucket. 7.1. The reference to the evidence of the Investigating Officer about the contents of the further statements creates serious doubt. The complaint and the dying declaration nowhere refers to the aspect of demand of Rs. 50,000/- for settlement and the complainant showing his willingness to pay the amount and not to beat him and thereafter the accused declining to accept any amount and agitating to the effect that they want to take revenge and so saying the assault was started. Thus, non-production of further statement coupled with the so-called discovery panchnama creates serious doubt about the method of investigation. Furthermore, it clearly reveals that the deceased had deliberated with person present before recording of the FIR. 7.2. Thus, non-production of further statement coupled with the so-called discovery panchnama creates serious doubt about the method of investigation. Furthermore, it clearly reveals that the deceased had deliberated with person present before recording of the FIR. 7.2. The outdoor case papers merely refer to three names in the case history and two others according to the evidence of Medical Officer. The disclosure of name of two others in the FIR, thus suggest of somebody prompting the deceased. Thus, the dying declaration prima facie is not found to be consistent and trustworthy. 8. The claim that all 5 accused threw acid as emerging in dying declaration is also not probabilized. The circumstantial evidence which the prosecution is relying clearly revealed about participation of the accused Labhu Shardul being involved in the Act of throwing acid as per the prosecution case. The prosecution is relying on medical evidence about the accused Labhu Shardul sustaining injury according to the prosecution case as per Yadi. The prosecution is also relying on medical certificate of Labhubhai Shardul. It is also revealed that the accused Labhu Shardul came to be murdered thereafter. 8.1. Thus, even circumstantial evidence which is sought to be relied upon by the prosecution is not consistent with the dying declaration produced by the prosecution. Thus, there is no other evidence suggesting involvement of the accused Nos. 1, 2 and 4. There is also no circumstantial evidence corroborating the dying declaration or establishing involvement of the accused. 9. Mr. J.K. Shah, learned APP appearing for the State of Gujarat would contend that conviction and sentence for life imprisonment ordered by learned trial Judge holding convict-appellants guilty of charge under Section 302 of Indian Penal Code do not require any interference by this Court in view of clear findings of learned trial Judge that accused did commit crime for which, reliance is not only placed on dying declaration Exh. 90 but also on other evidence which corroborate trustworthiness and truthfulness of dying declaration. 9.1. It is submitted that at 10:45 a.m. on 6.1.1998 the injured complainant was admitted in the hospital, for which, certificates of injuries based on preliminary examination by medical officer and version disclosed by the injured complainant came to be recorded and it reveals that along with three persons who were named two other unknown persons were also stated to have committed crime. However around 11:00 a.m. yadi was sent and that FIR was registered around 11:45 a.m. to 12:10 p.m. which also reveal that watchman has taken the injured complainant on his scooter. Upon receiving yadi dying declaration was recorded between 12:10 p.m. to 12:40 p.m. and so is deposed by the Executive Magistrate and further Dr. Vijay Sampat has deposed about injuries in Column 17 of postmortem note and cause of death. Besides, FSL reveals presence of acid on clothes on accused which remained unexplained even in statement recorded under Section 313 of accused though question was put on Sr. No. 146. Though some of the witnesses turned hostile but believable portion of their testimony reveal that place of incident and act of throwing acid, for which, even burn injuries were received by one Mr. Mansing PW 3 Exh. 34. It is further submitted that receipt of copy of the bill of acid purchased by accused from the shop owner is also established and proved and thus, collectively when investigating officer has also confirmed the nature of investigation including recoveries of used material for commission of crime, a case is made out by the State of Gujarat for conviction and sentence as recorded by learned trial Judge which calls for no interference. 10. For better appreciation of facts three different versions of injured who later on succumbed to injuries are reproduced herein below so as to appreciate submissions of learned counsel for the appellants about alleged omission, contradictions, discrepancies, improvement etc. to prove as to whether the case of the prosecution is beyond reasonable doubt against the appellants or not. 10.1. On 6.1.1998 at 10:45 hours the injured was brought to Sir T Hospital Bhavnagar and he stated before the medical officer that, Labhu Shardul, Soma Shardul, Shardul Ramsigh and Pancha Rana and one other were the persons who had made acid burns on Boghabhai Merabhi (injured). It is further stated that acid was thrown on him and assaulted with pipes, sticks and knife at 10:30 a.m. 10.2. The Medical Officer found the injuries on the injured person viz, on scalp, neck, face, chest, butts, upper arms, forearms, abdomen, buttocks partly, thighs, legs, perineal region. The medical officer further stated that the incise wound on left forearm above wrist about 7.5 cm x 2 cm x tissue deep bleeding present. The Medical Officer found the injuries on the injured person viz, on scalp, neck, face, chest, butts, upper arms, forearms, abdomen, buttocks partly, thighs, legs, perineal region. The medical officer further stated that the incise wound on left forearm above wrist about 7.5 cm x 2 cm x tissue deep bleeding present. Abrasion on right chest on second rib, 3 cm from sternum right side, oblique about 1/2 cm in length. 10.3. That Exh. 113 and 114 are reproduced herein below: Assaulted by: (1) Labhu Shardul (2) Soma Shardul (3) Shardul Ramsing (4) and other 2 persons. Yellowish fingers skin, scalp hair burnt.... illegible.... 10.4. The complaint (Exh. 127) before Police Inspector ‘A’ Division Bhavnagar reads as under: “My name is Boghabhai Merabhai Ulva, caste: Rabari. Aged: 42, Occupation: service, Residing at Bhavnagar, Sindhunagar Camp plot No. 1969. I am giving this complaint in person and declare the facts of my complaint that I reside at the aforesaid place and work as a peon in a college. I have four sons and one daughter. Today, at about 10-00 hours in the morning, I was going on my Honda motorcycle for my duty in the college. At about 10-20 hours, when I entered from the main gate (Vaghavadi road) of our college, Rabari Shardul Ramsing, Rabari Soma Shardul, Rabari Labhu Shardul, Rabari Bhura Naga and Rabari Pancha Rana - all residing at Bhavnagar were standing behind the gate. They made me to stop my Hero Honda. Shardul was carrying a bucket filled with acid and he splashed the acid from the bucket on me. Soma, Labhu, Bhura and Pancha were having sticks in their hands and Pancha was having a sword in his hand. As they inflicted blows one after the other on me. I have sustained injuries on the left hand wrist, both legs and right ear. As acid entered my eyes, I fell down on the ground. As I started shouting, Parmanand Khimjibhai - the watchman of the college has brought me in Sir T Hospital for treatment and I have sustained serious burns. The cause of this dispute is that there was a quarrel between me and Shardul Ramsing in Sindhunagar before about four months from today on account of collision of scooter and police complaint was filed.” 10.5. Exh. The cause of this dispute is that there was a quarrel between me and Shardul Ramsing in Sindhunagar before about four months from today on account of collision of scooter and police complaint was filed.” 10.5. Exh. 90 the Dying Declaration before Executive Magistrate, Bhavnagar City reads as under: “Charge: Shri Police Head Constable, Hospital duty, Bhavnagar In charge officers yadi No. 12/98 Date. 6/1/98, Time: 12-10 AM, started at 12-25 AM Sir Takhtsinhji Hospital, Ward No. Burns ward, bed No. Cabin No. 3 -:CERTIFICATE:-- The patient has been identified and he is in conscious state to reply. Sd/- illegible Date. 6/1/98 Medical officer. As I am asked by stating that you are a Magistrate and you have arrived to record my dying declaration for possible cause of death, I dictate that..... My name: Boghabhai Age: about 42 years Father’s Name: Merabhai Ulva Caste: Rabari Occupation: Peon in Science college Residence: Sindhunagar, Bhavnagar. Question: What has happened to you? Why have you come to the hospital? Answer: Today, at 10-30 AM, when I was going to Science college on Vaghavadi road on my duty, a bucket full of acid was splashed upon me near the entrance of the college. As a result, I have sustained injuries on my face, on chest part, both hands and both legs. Before smashing the acid, Shardul Ramsinh inflicted stick-blow upon me and I sustained injury on left hand. Labhu Shardul, Soma Shardul, Bhura Naga and Pancha Naga - all united and splashed the acid upon me. They were hiding behind the gate. As I entered into the gate, stick-blow was given and the acid was splashed. There were many persons around at the relevant time, but after seeing me, they ran away. When I was started shouting ‘help...help....’, watchman Sindhi Parmanand brought me on his scooter and admitted me in the hospital. This incident has occurred at 10-30 hours in the morning. There was a quarrel with these persons before four to five months and prior to this, these persons came to beat me near Kaliyabid Meldima Mandir and as they came to beat me, I ran away. Thus, by keeping in mind the previous animosity, acid has been splashed upon me. While dictating the above fact, I am in complete conscious state and as the same is read over to me and as it is correct, I have made my signature underneath.” 11. Thus, by keeping in mind the previous animosity, acid has been splashed upon me. While dictating the above fact, I am in complete conscious state and as the same is read over to me and as it is correct, I have made my signature underneath.” 11. Deposition of P.W.25 (Exh. 88) reads as under: 1) Presently, I am performing duty as a Circle Officer at Mahuva. On 6-1-98, I was performing duty as Deputy Mamlatdar at the City Mamlatdar Office. 2) On 6-1-98, a yadi was received from the police-constable, discharging duty at hospital. The said yadi was for recording the dying declaration of Bodhabhai Merabhai. The witness is shown Mark 87/1. On seeing it, he states that this yadi is the one which I had received. I had put signature in respect of receiving the yadi after inserting date and time. I identify the same. As there is no objection for the Defence against giving exhibit, Mark 87/1 is taken on record and given Exh. 89. 3) After receiving the yadi, I had gone to Sir T. Hospital of Bhavnagar. After going there, I had met the doctor who was on duty. The yadi was shown and it was informed that I am supposed to record the D.D. of Bodhabhai Merabhai. After I had said so, both of us had gone to the Ward of Burns. In the said ward, we had gone into Cabin No. 3. The relatives of the patient had been sent out from the cabin. The doctor had asked 2-3 questions to the patient. Thereafter, the doctor had certified that the patient is in conscious state and that he is in such a condition that he can answer questions. The witness is shown Mark 87/2. On seeing it, he states that the doctor had issued the certificate which is there in the dying declaration. 4) It was explained to the patient that I am the Executive Magistrate and that a statement is to be recorded in relation to the cause of his possible death. The D.D. was started at 12-25 hours. On asking name to the patient, he had stated it as Bodhabhai. The name of the father was stated as Merabhai Ulva. Age - 42 years, caste - Rabari, Occupation - service as a peon in a Science College and Residence - Vidyanagar, Bhavnagar were stated. The D.D. was started at 12-25 hours. On asking name to the patient, he had stated it as Bodhabhai. The name of the father was stated as Merabhai Ulva. Age - 42 years, caste - Rabari, Occupation - service as a peon in a Science College and Residence - Vidyanagar, Bhavnagar were stated. On asking the patient as to what has happened to him and why he was there in the hospital, the patient had stated that today at 10-30 hours, he was going for service in Vaghavadi Road, Science College, at that time, acid was thrown upon him with a bucket filled with it. As a result he has sustained injuries on face, chest, both the hands and legs. Before that, Shardul Ramsinh had inflicted a stick-blow on his left hand. Babu Shardul, Naga Shardul and Pancha Naga - all these four persons together had thrown acid on him. These persons were hiding themselves behind the gate. As soon as he entered the gate, acid was thrown on him. At that time, there were many people around, but they also ran away. As he shouted ‘help... help..’ a Sindhi Parmananda - a security-guard came there and got him admitted in the hospital by taking him on a scooter. The injured complainant further stated as under: “I had a quarrel with these persons before four to five months. Prior to this, these persons had chased me near the Temple of Mother Meladi of Kaliyabid and I had run away. Acid was thrown upon me in relation to this enmity.” The details as dictated by the patient had been written by me. On reading over the details dictated to the patient, he stated that they were proper and put a signature in it. I had put signature in terms of ‘as before me’. The witness is shown Mark 87/2. On seeing it, he states that this is the same D.D. which I had recorded. The handwriting and the signature in it are mine. There is the signature of Bodhabhai also in it. I identify the same. The fact written therein is true and correct. Mark 87/2 is given Exh. 90. 5) The D.D. recorded had been submitted in the City Mamlatdar Office. On being served a summons, I have brought it today. Note - The APP wants to remind the witness u/s 159 of Evidence Act. I identify the same. The fact written therein is true and correct. Mark 87/2 is given Exh. 90. 5) The D.D. recorded had been submitted in the City Mamlatdar Office. On being served a summons, I have brought it today. Note - The APP wants to remind the witness u/s 159 of Evidence Act. There is no objection for the Defence. The attention of the witness was drawn to the original D.D. on viewing which the witness states that Naga Shardul was not there but Soma Shardul had been dictated. Cross-examination for the accused Nos. 1 and 2 6) The Office of Mamlatdar, Bhavnagar City is situated in the compound of the Collector Office, opposite to Galaxy Talkies. My office is located on the ground floor. It is false that our office is located after the porch from the main door of the Collector Office, after 5 steps. The witness states that 5 steps are not there but three steps are there. I have not counted the steps of the office. It is false that I state on approximate basis that there are three steps. Our office is at the height of about 3.5 ft. from the road. 7) I was doing routine-work in my office when the yadi for recording D.D. had been received. On receiving the yadi, time of receipt had been inserted. After putting the files of my office properly, I had gone for recording D.D. It had taken about 1-2 minutes in putting the files. I had gone to the hospital in emergency-vehicle. The emergency-vehicle had not come to the steps. The said emergency-vehicle was there on the road outside the compound of the Collector Office. My room is second in my office. It had taken about 1 to 1.5 minutes in getting into the vehicle from my office. It is true that heavy traffic is found on the road from Collector Office to the hospital passing by Galaxy Talkies via Kalanala. After I got into the vehicle, it took about 4-5 minutes in reaching the hospital. After getting down from the vehicle, at first I had gone into O.P.D. It is true that the doctor was not waiting for me. It took about one minute in searching for the doctor. It is false that as I introduced myself, the doctor had put signature on my paper in the book itself. After getting down from the vehicle, at first I had gone into O.P.D. It is true that the doctor was not waiting for me. It took about one minute in searching for the doctor. It is false that as I introduced myself, the doctor had put signature on my paper in the book itself. 8) I had shown the yadi to the doctor. It had taken about half a minute in giving my introduction to the doctor etc. It takes about one minute in coming to the Burns Ward from O.P.D. The Cabin No. 3 is situated on the left side. The patient was introduced by the doctor. Thereafter, the doctor had put signature in the certificate. Thereafter, I had started recording D.D. The face and hands of the person giving D.D. were not seen. The D.D. had been recorded in my presence and the presence of the doctor. It is true that the signature of the doctor has not been obtained after the D.D. was over. Such a clear remark has not been made in the D.D. that the doctor was present during the entire time of the recording of the D.D. It is true that the time of 12-10 is written in the D.D. of Exh. 80, the figure of ‘2’ has been darkened in it and the figure of ‘2’ is darkened in the time of 12.25 also. Both the figures of ‘2’ have been darkened. I have not put a short signature after darkening. I do not have the information that there is a circular of State that in cases of mistake committed in any government record, a short signature should be put in departmental matters after correcting the statistical detail. It is true that a short signature should be put whenever a correction has to be made in the statistical data. 9) It is true that the D.D. has not been written in the form of question and answer. I had not asked the patient as to ‘what is the meaning of a.m.’. It is false that as I had received the complaint along with the yadi, I had written a D.D. as suitable to it. 10) There were 2-4 persons in the police-van. It is false that the police-person had described the entire incident of Bodhabhai on the way. It is false that as I had received the complaint along with the yadi, I had written a D.D. as suitable to it. 10) There were 2-4 persons in the police-van. It is false that the police-person had described the entire incident of Bodhabhai on the way. 11) It is false that I have written the D.D. in my way though Bodhabhai has not stated anything. It is false that Bodhabhai had not been shown to me by the doctor. It is false that the doctor had put a signature in the O.P.D. Chamber itself. 12) At present, I do not remember the fact as to whether the Mamlatdar was present or not on the day when the D.D. was taken. It is false that when police-persons come with a yadi, at first, they see the Mamlatdar. It is true that the yadi was not there in my name. There are four Deputy Mamlatdar in our office. Today I have not brought the notification of government that the Deputy Mamlatdar is supposed to do the procedure in respect of D.D. The work in respect of taking D.D. has been done by the order of the Collector. Today I have not brought the document in respect of the fact that the Deputy Mamlatdar should do the procedure of recording D.D. The witness states that the Deputy Mamlatdar, Circle Officer, the Deputy Mamlatdar (supply), Deputy Mamlatdar (account) go for recording D.D. as per their fixed turns. 13) After receiving the yadi for D.D., it took about 15-20 minutes in reaching to the patient. I do not know the name of the doctor. I had not asked the name of the doctor. I had not carried out the investigation as to who is treating the patient. There were no other patients in the Cabin No. 3 of Burns Ward. I do not know the fact as to who were the relatives of the patient present there. No re-examination by the A.P.P. Shri Zala.” 11.1. Deposition of P.W.26 (Exh.91) reads as under: 1) At present, I am retired. On 6-1-98, I was performing duty as A.S.I. in “A” Division of Bhavnagar Police Station. On 6-1-’98, I was having the charge of P.S.O. from 8-00 hours in the morning to 2-00 hours in the afternoon. During the time when I had the charge, a noteworthy entry had been received from hospital at 12-00 hours. On 6-1-98, I was performing duty as A.S.I. in “A” Division of Bhavnagar Police Station. On 6-1-’98, I was having the charge of P.S.O. from 8-00 hours in the morning to 2-00 hours in the afternoon. During the time when I had the charge, a noteworthy entry had been received from hospital at 12-00 hours. It was noted in the register of note-worthy entries. The said entry had been noted in the station-diary also vide Sr. No. 9 as the note-worthy entry No. 12/98. Today I have brought the original station-diary on seeing which I state that a note has been made on Page No. 12 on 6/1/’98 vide Sr. No. 9. The handwriting and the signature therein are mine. I identify the same. The fact written therein is true and correct. The witness is shown Mark 87/3 on viewing which he states that it is the extract of the station-diary of “A” Division of Bhavnagar Police Station as on Page No. 12 made vide Sr. No. 9 dated 6-1-’98. It is the true copy made from the original. On viewing the original, I state that it is as per the original only. Its photo-copy is a certified copy. As there is no objection for the Defence to give exhibit to Mark 87/3, Mark 87/3 is given Exh. No. 92. 2) The investigation of the note-worthy entry had been assigned to the P.I. Shri K.R. Patel by a written order. As the complaint taken down by the P.I. from Sir T. Hospital at 12.30 hours was produced, the same was registered. Its offence was registered and entry was made in the station-diary. The witness has brought the original station-diary today. On viewing its Page No. 13, he states that the entry of the complaint received had been made in the station-diary vide Sr. No. 10 at 12.30 hours on 6/1/’98. The handwriting therein is mine. There is my signature in it. I identify the same. The witness is shown Mark 87/4. On viewing it, the witness states that it is the true copy of the entry No. 10 of Page No. 13 of the station-diary of “A” Division Police Station. On verifying it with the original, it is correct. As there is no objection against giving exhibit to Mark 87/4, Exh. No. 93 is given to it. The witness is shown Mark 21/8. On verifying it with the original, it is correct. As there is no objection against giving exhibit to Mark 87/4, Exh. No. 93 is given to it. The witness is shown Mark 21/8. On viewing it, the witness states that it is the true copy of the entry No. 9 and 10 of 6/1/’98 of “A” Division of Bhavnagar City Police Station. It has been made from the original. As there is no objection for the Defence against giving exhibit, Mark 21/8 is given Exh. No. 94. 3) The F.I.R. was issued in Form No. 154. Thereafter, the investigation of this case was handed over to the P.I. Shri K.R. Patel by a written order. The witness is shown Mark 21/2, on viewing which the witness states that the investigation of this case had been handed over to the P.I. Shri K.R. Patel by this written order. The handwriting is of his writer and the signature therein is mine. The fact written therein is true and correct. Mark 21/2 is given Exh. No. 95. 4) The witness is shown Mark 21/4. It is the office-copy of the report made to the superior officer in respect of a serious offence. The handwriting therein is of my writer, There is my signature below. I identify the same. The fact written therein is true and correct. Mark 21/4 is given Exh. 96. Cross-examination for the Accused Nos. 1-2 5) I had received the note-worthy information at 12-00 hours. It is the noteworthy entry No. 12/98. At the time when I received the information of note-worthy entry, the Police Inspector Shri Patel was sitting in his chamber in the police station. After making an entry in register, he made the order of investigation. I do not remember the fact as to whether he made a written order or an oral order. It is true that in the station-diary, entry No. 9 was made in respect of note-worthy entry No. 12/98. Thereafter, the P.I. went for investigation. It might have taken the time of about five minutes between making the entry of 12-00 hours and making the order of investigation. It would take about five minutes to reach Sir T. Hospital from the police station of “A” Division. 6) After registering the complaint brought by the officer Patel, the further investigation was handed over to him vide the order of Exh. 95. It would take about five minutes to reach Sir T. Hospital from the police station of “A” Division. 6) After registering the complaint brought by the officer Patel, the further investigation was handed over to him vide the order of Exh. 95. Cross-examination for the accused Nos. 3-4. No cross-examination. No re-examination by the A.P.P. Shri Zala.” 11.2.Deposition of P.W.27 (Exh. 112) reads as under: “(1) I was performing duty as a Medical Officer in Sir T. Hospital on 6/1/98. Boghabhai Meramanbhai was brought to me for treatment with police yadi. He was brought at 11.00 o’clock in the morning. The person with him had got outdoor case issued. Mark 109/4 is shown to the witness and he states after seeing the same that it is the outdoor case papers of Boghabhai. I have made entry therein to admit him. The fact written therein is true and correct. The patient gave history, wherein he stated names of four accused persons, which I wrote down. He was admitted as an indoor patient. The fact written in Mark 109/4 is true and correct and the same is exhibited at Exhibit-113. (2) He was admitted as an indoor patient. The patient stated in his history that acid has been thrown on him and he has been assaulted with pipe and knife. The incident occurred at half past ten o’clock in the morning. He had given the names of the accused persons, wherein he stated that there were Labhu Shardul, Soma Shardul, Sardhul Ramji and two other persons. He was totally conscious. His condition was serious. He had burn marks on head and there were total burn marks on neck, face, chest and both upper arms and lower arms. There were burn marks on front part of abdomen, thigh, leg, genital organ and back part of hip. Both the eyes sustained burns. The skin had become burnt and black colour blood was flowing thereof. He had sustained second to third degree deep burn marks. He sustained 70 to 80 percent burns. (3) He has also sustained the following injuries. 1. An incised wound on left hand on the upper part of wrist. It was 7 cm x 2 cm x muscle deep in size. It was bleeding and had semi-elliptical shape. 2. He had sustained second to third degree deep burn marks. He sustained 70 to 80 percent burns. (3) He has also sustained the following injuries. 1. An incised wound on left hand on the upper part of wrist. It was 7 cm x 2 cm x muscle deep in size. It was bleeding and had semi-elliptical shape. 2. An abrasion mark near the second rib on the right side of chest, which was abraded skin near second rib far from sternum. It was half a centimeter long. (4) As per my opinion the burn injury was caused by corrosive chemical substance. (5) Injury No. 1 was caused by a sharp weapon. Injury No. 2 was such that could have been caused by a sharp substance. The condition of the patient was very serious. (6) xxxx (7) xxxx (8) xxxx (9) xxxx (10) xxxx (11) xxxx (12) xxxx (13) xxxx (14) As the said patient died, his postmortem examination was done. I had done that postmortem examination. The dead body was identified by his son Rabari Ghughabhai. Postmortem was started at 12.55 o’clock and completed at 1.55 o’clock. The dead body was of a 42 years old male. He had worn green colour lungi. The body was fairly built and cold. Rigor mortis had developed on head and neck part. P.M. lividity was absent. (15) The following observations were seen during external examination. 1. First and second degree burns were present on genital organ and it had blackened. 2. No vesicles were seen. 3. The scalp hair had become black due to burning. 4. Both the hands were semi-flexed from elbow and lying in the chest. 5. There was a stitched wound on upper part of wrist on left hand. 6. First, second and third degree burns present. Skin blackened and no vesicles were seen. 7. Burn marks were present on face, neck, head, front part of chest and on some portion of back, front part of abdomen, on the genital organ and in the surrounding area, both the hands, upper part of wrist, both the feet and front part till knee joint. 8. Burn marks were present on both the hips on the back part. The skin had blackened wherever there were burn marks. The body was about 70% burnt. (16) These injuries were antemortem. (17) On making the internal examination, the brain and meninges were swollen. 8. Burn marks were present on both the hips on the back part. The skin had blackened wherever there were burn marks. The body was about 70% burnt. (16) These injuries were antemortem. (17) On making the internal examination, the brain and meninges were swollen. Both the lungs were congested. Pleura and trachea were swollen. Heart was swollen. Black colour liquid blood was present in left and right chambers of heart. Teeth were black. Oesophagus, stomach, small intestine, large intestine, pancreas, spleen, liver, gal bladder and kidneys were swollen. The urinary bladder was empty. Five cc blood was collected and sent for viscera. Lungi was seized and handed over to the police constable. (18) Cause of death:- due to shock and toxemia following severe extensive chemical burns. The witness is shown Mark-21/25 and the witness states after seeing the same that this is the postmortem report, which I had prepared. It bears my signature. The fact written therein is true and correct. Mark-21/25 is given Exhibit-122. The witness is shown Exhibit-90. He has stated after seeing the same that I had issued this certificate for identifying the patient and stating that he is in conscious state. It bears my signature and it is prepared in my handwriting. (19) I state after seeing the certificate of Exhibit-121 that the injury No. 1 mentioned therein was such that can be caused with a sharp weapon like sword and knife. Injury No. 2 can be caused with a stick. The burn injury can be caused by inflammable substance like acid. (20) xxxx (21) xxxx (22) xxxx (23) xxxx (24) When the patient was brought to me, his general condition was weak. Respiration should be normally 15 to 20 per minute. When I examined the respiration of this patient, it was 28 per minute. The blood pressure of a normal person is 120 high and 80 low. It is not true that I have not made entry of mental condition of the patient. The witness states that the patient was speaking clearly. I have not noted down in the certificate that the patient was able to speak. It is true that fit state of mind and consciousness are two different conditions. (25) My duty was in OPD on 6/1/98. OPD and casualty are run together. The witness states that the patient was speaking clearly. I have not noted down in the certificate that the patient was able to speak. It is true that fit state of mind and consciousness are two different conditions. (25) My duty was in OPD on 6/1/98. OPD and casualty are run together. There is a separate doctor to examine the outdoor patients and there is a separate doctor in emergency treatment center. There are separate doctors for casualty and OPD. On the day of the incident, my duty was in casualty. The doctor of casualty has to take care of medico-legal cases and he has to also take care of the cases of normal patients. It is not true that from the year 1996, there are two separate doctors for casualty and OPD in Sir T. Hospital. The doctor of the burns ward give treatment to the patients of burns. There is separate doctor to give treatment to the indoor patients. The doctor, who gives treatment to indoor patient, hold degree in M.D. M.S. It is true that I was not allotted the duty of the doctor for burns ward. The witness states that to record the dying declaration of the patient, the respective Executive Magistrate meets the doctor on duty who has given treatment in MLC case. It is true that I have not given any treatment to Boghabhai as indoor patient. The patient was admitted as an indoor patient on 6/1/98 at 11.30 o’clock. It is true that I have not given treatment to the patient as the indoor patient. Witness states that when the Executive Magistrate arrived, the identification of patient was done and his mental condition was informed. (26) It is true that no entry has been made in indoor case papers regarding the arrival of the Executive Magistrate and the opinion given by me regarding the condition of the patient. It is true that no entry has been made in the indoor patient case papers that the Executive Magistrate recorded the dying declaration of the deceased. (27) Some details of the dying declaration form of Exhibit-90 are printed. I have not written time in the certificate. No note has been made on Exhibit-90 that I was present till the completion of the dying declaration. (27) Some details of the dying declaration form of Exhibit-90 are printed. I have not written time in the certificate. No note has been made on Exhibit-90 that I was present till the completion of the dying declaration. It is true that signature and date is written in the certificate of dying declaration of Exhibit-90; except this, the other handwritings are not mine. Nothing is stated about fit state of mind in the certificate.” 12. It is profitable to refer to the decisions of the Apex Court with regard to dying declaration under Section 32 of Evidence Act and law laid down therein. As early as in Khushal Rao v. State of Bombay AIR 1958 SC 22 }, the Apex Court considered the law with regard to dying declaration under Section 32 of Evidence Act and in para 17 held as under: “17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 12.1. Later on certain principles are laid down governing dying declaration which could be summed up as under: 1. Later on certain principles are laid down governing dying declaration which could be summed up as under: 1. Paniben (Smt.) v. State of Gujarat (1992) 2 SCC 474 ], certain principles are laid down which are as under: “(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.” 2. Koli Chunilal Savji v. State of Gujarat (1999) 9 SCC 562 ] it is held that “the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question.” 3. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question.” 3. Laxman v. State of Maharashtra (2002) 6 SCC 710 ] wherein it is held that “when it is recorded, no oath is necessary nor is the presence of a Magistrate, if absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such record. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. That is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.” The Apex Court further held that if the dying declaration is of such a nature as to inspire full confidence of the court in its truthfulness and correctness and in deposition the Executive Magistrate reiterate and depose about his satisfaction about fitness of state of mind of the declarant, even without examination by the doctor, the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. While declaring the law, as above, the Apex Court has kept in mind the juristic theory regarding acceptability of a dying declaration, as born out from Section 32 of the Indian Evidence Act. Further, the Apex Court considered two earlier decisions; [i] Paparambaka Rosamma v. State of A.P. Reported in (1999)7 SCC 695 ; and [ii] Koli Chunilal Savji v. State of Gujarat reported in (1999)9 SCC 562 about necessity of a certificate of the doctor, who examined the declarant about his fitness of state of mind vis-à-vis consequence of not examining. Further, the Apex Court considered two earlier decisions; [i] Paparambaka Rosamma v. State of A.P. Reported in (1999)7 SCC 695 ; and [ii] Koli Chunilal Savji v. State of Gujarat reported in (1999)9 SCC 562 about necessity of a certificate of the doctor, who examined the declarant about his fitness of state of mind vis-à-vis consequence of not examining. The ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given, if the Executive Magistrate, who recorded the dying declaration deposes about fitness of state of mind of the declarant, in the absence of medical certification of such condition of state of mind of the declarant, the Apex Court confirmed the law laid down in the case of Koli Chunilal Savji [supra]. Further, the Apex Court in para 3 of the above judgment kept the juristic theory of acceptability of a dying declaration in the context of Section 32 of the Indian Evidence Act. Para 3 of the above judgment, reads as under: “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is all the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to 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 state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise”. 13. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise”. 13. Keeping the declaration of law as above, applicability thereof in the facts and circumstances of this case is considered accordingly. 13.1. In continuation of overall appreciation of facts and circumstances of the case borne out from the record and proceedings containing oral, documentary and circumstantial evidence and submissions made by learned counsel for the appellants and learned APP, the case of the prosecution though substantially based on dying declaration Exh. 90 and complaint of complainant and his further statement who succumbed to burn injuries at Exh. 127 and documentary evidence namely Exh’s.143, 144, 145, 146 of F.S.L. reveal that samples of acid used for commission of crime were taken from clothes of deceased, Hero Honda motorcycle used by him and slipper. That purchase of acid by accused No. 3 Rabari Labhubhai, who died during trial from the shop of Mansurali, for which, even bill was received Exh. 60 confirmed in F.S.L. Likewise, presence of Sulphuric acid from clothes of the deceased and accused again confirmed in F.S.L. report. Further, Dr. Vijay Sampat, Medical Officer at Exh. 112 in his testimony confirms death due to shock and toxemia following severe extensive chemical burns. Even nature of injury No. 1 namely incise wound on left hand on the upper part of wrist measuring 7 cm x 2 cm x muscle deep in size and semi-elliptical in shape is also confirmed in deposition, establish case of the prosecution about usage of weapon namely, sword and further injury No. 2 and abrasion mark in second rib on the right side of chest is also by usage of sticks etc. That Executive Magistrate who recorded dying declaration Exh. 90 of injured complainant who died later on reveal that he was in conscious state to reply with eyes open and the Executive Magistrate reached in burns ward at Sir ‘T’ Hospital in time as mentioned in the dying declaration which lasted from 12.10 a.m. to 12:25 a.m.. That Doctor had certified that patient was in conscious state and in such a condition that he would answer questions. That recording of dying declaration not in particular format by itself would not be a ground to reject the case of prosecution. That sum and substance of dying declaration Exh. 90, complaint Exh. That Doctor had certified that patient was in conscious state and in such a condition that he would answer questions. That recording of dying declaration not in particular format by itself would not be a ground to reject the case of prosecution. That sum and substance of dying declaration Exh. 90, complaint Exh. 127 and what was disclosed initially before Medical officer when injured complainant disclosed nature of assault naming three assailants and two unknown persons remained consistent with place of offence, timings and throwing acid on his body by accused. It is clear from all the above statements that deceased had seen assailants who stopped his vehicle and thereafter acid was thrown on his body and was beaten with sticks and sword. Therefore, it cannot be said that when acid had entered into eyes of the injured it was difficult for him to identify or name persons. That minor discrepancies in describing weapons of assault with particular accused in all three statements again is not such kind of major discrepancies resulting into failure on the part of the prosecution to establish its case. The injured complainant and deceased was through out consistent about incidents, injuries, togetherness of five accused with sticks and sword and splashing acid and receiving such injuries so disclosed before medical officer and Executive Magistrate cannot be said that the dying declaration Exh. 90 is not trustworthy only because of addition of earlier incident in which deceased was accused facing trial for offence under Section 307 and asked for some amount towards compromise. The above statement is not contradictory or in any manner improved upon earlier statements. 13.2. Even some witnesses like Parmanand, who had taken injured complainant on his scooter and Mansingh Rukhad, though turned hostile, who received burn injuries confirmed the incident of throwing acid upon injured complainant by persons of the accused. Inspite of question No. 146 was asked to the accused in a statement recorded under Section 313 of Code of Criminal Procedure about presence of acid on his clothes, no explanation was rendered, which again confirms case of the prosecution about crime committed by the assailants. Doubt and improbability sought to be argued on the basis of various statements of the injured complainant deceased are not of such a nature which cannot be relied on. Doubt and improbability sought to be argued on the basis of various statements of the injured complainant deceased are not of such a nature which cannot be relied on. That conjoint reading of all three statements of the injured, who died later on, not only inspire confidence but satisfy the test of truthfulness. There are no major discrepancies or improvement or contradictions of such nature affecting the case of the prosecution, since the declarant is consistent about basic nature of incidents of assault, place and timings of the incident, involvement of number of persons, injuries as noticed by medical officer and so certified and ultimately deposed by medical officer and testimony of Executive Magistrate that the declarant was conscious and able to state facts about the incident. Thus, collectively all the statements of declarant are voluntary, true and inspire confidence and case of prosecution falls within the parameters laid down by the Apex Court in decisions reported in (1) Paniben (Smt.) v. State of Gujarat (2) Koli Chunilal Savji v. State of Gujarat and (3) Laxman v. State of Maharashtra (supra). 14. Thus, collectively the prosecution has succeeded, established and proved its case beyond reasonable doubt by bringing home guilt of the accused not only based on dying declaration but well supported by oral as well as documentary evidence. Learned trial Judge has well appreciated the evidence as above, the findings and conclusions of the guilt of all accused are supported by reasons. It collectively persuade us that, no case is made out to interfere in these appeals filed under Section 374of Code of Criminal Procedure, 1973 arising out of judgement and order dated 12.1.2007 in Sessions Case No. 71/1998 of conviction of accused for rigorous imprisonment for life and fine of Rs. 1,000/- each, in default, to undergo further rigorous imprisonment for six months for the offence under Sections 302, 147, 148, 149 of Indian Penal Code and under Section 135 of Bombay Police Act. 15. R & P to be sent back to the trial court forthwith. 16. At this stage, Mr. A.D. Shah, learned counsel appearing for the appellants sought eight weeks time to surrender before the jail authority for appellants (original accused Nos. 1,2,4 and 5 of Sessions Case No. 71/1998). The said request is granted and appellants (original Accused Nos. 15. R & P to be sent back to the trial court forthwith. 16. At this stage, Mr. A.D. Shah, learned counsel appearing for the appellants sought eight weeks time to surrender before the jail authority for appellants (original accused Nos. 1,2,4 and 5 of Sessions Case No. 71/1998). The said request is granted and appellants (original Accused Nos. 1,2,4 and 5 of Sessions Case No. 71/1998) who are on bail are granted eight weeks time from today to surrender before the jail authority. Bail bonds shall stand cancelled.