JUDGMENT : Raj Beer Singh, J. 1. These five appeals have been preferred against common judgment and order dated 09.02.2016 passed by learned Additional Sessions Judge, Court No. 3, Jaunpur in Session Trial No. 247 of 2001 (State Vs. Kamla and others), Crime No. 51 of 1994 under Sections 147, 302/149, 452/149, 307/149 of IPC, Police Station Pavara, District Jaunpur, whereby accused appellants Ram Janam, Ram Siromani, Ram Baran, Prasidh Narayan and Amrit Lal have been convicted under Sections 147, 452/149, 307/149 and 302/149 of IPC and they were sentenced as under: (i) 147 IPC - Two years rigorous imprisonment. (ii) 452/149 IPC - Five years rigorous imprisonment along with fine of Rs. 10,000/-. In default of payment of fine, they have to undergo one year additional imprisonment. (iii) 307/149 IPC - Ten years rigorous imprisonment along with fine of Rs. 10,000/-. In default of payment of fine, they have to undergo one year additional imprisonment. (iv) 302/149 IPC - Imprisonment for life along with fine of Rs. 10,000/- under Section 302/149 of IPC. In default of payment of fine, they have to undergo one year additional imprisonment. 2. Alleged incident took place on 10.05.1994 at 10:30 pm at residential premises of complainant Lalji, wherein Shiv Dhari, Vavna Devi, Bhola Nath, Munni Lal and Vijay Kumar have sustained injuries and later on, four injured persons namely, Shiv Dhari, Bhola Nath, Vijay Kumar and Munni Lal succumbed to injuries. According to prosecution version, marriage of complainant Lalji was solemnized only 4-5 days prior to the incident. In the marriage, one band party of complainant's village was hired against consideration of Rs. 600/-. After 'Barat' came back, Rs. 300/- were paid to the said band party and complainant's father has promised to pay remaining Rs. 300/- within 3-4 days, but the band party members were insisting to pay the same forthwith and they have threatened that they will realise the amount, whatever may be the way. Earlier, village Pradhan Prasidh Narayan, has also threatened the family of complainant that if they did not vacate the land, he would get them killed. Due to this enmity, on 10.05.1994 at 10:30 pm, accused appellant Prasidh Narayan along with accused-appellants Ram Baran Harijan, Ram Siromani, Amrit Lal, Ram Janam and deceased accused Kamala Mushar along with one more person, came at the house of complainant. There was light of lantern in courtyard. Due to this enmity, on 10.05.1994 at 10:30 pm, accused appellant Prasidh Narayan along with accused-appellants Ram Baran Harijan, Ram Siromani, Amrit Lal, Ram Janam and deceased accused Kamala Mushar along with one more person, came at the house of complainant. There was light of lantern in courtyard. All the accused came at the door of house and started assaulting complainant and his family members with lathis and sticks. Complainant's maternal uncle Shiv Dhari, maternal aunt Vavna Devi, father Bhola Nath, maternal brother Munni Lal sustained serious injuries. Hearing noise, many persons have assembled there but accused persons have ran away after threatening the family of complainant. 3. Complainant Lalji (PW-1) reported the matter to police by submitting tehrir Ex. Ka-1 at police station. Consequently, the case was registered on 11.05.1994 at 02:30 hours, vide FIR exhibit ka-7. 4. All the injured persons were taken to hospital and were medically examined. Injured Munni Lal has sustained following injuries: (i) Lacerated wound 6 cm x 3 cm x cartilage and bone deep on the left ear, bleeding present. Some part of ear pinna less. (ii) Contused swelling 9 cm x 8 cm on left side head just above the left ear. (iii) Contused swelling 7 cm x 8 cm on left side of face just below the left ear. Injured Babni has sustained following injuries: (i) Lacerated wound 3.5 cm x .5 cm x scalp deep right side forehead 1 cm above right eyebrow. Bleeding present. (ii) Contusion 6 cm x 2 cm around right eye orbit. (iii) Contusion 9 cm x 6 cm right side face just lateral to outer angle of right eye kept under observation advised x-ray, referred eye surgeon for expert opinion. (iv) Abraded contusion 2.5 cm x 2 cm outer part of right forearm 6 cm above right wrist. Injured Vijay Pratap has sustained following injuries: (i) Contused swelling 7 cm x 3 cm left head 6 cm above from left ear. (ii) Contused swelling 11 cm x 5 cm and back of left forearm just above the left wrist joint. (iii) Abraded contusion 3 cm x 2 cm on the left knee joint. (iv) Contusion 8 cm x 2 cm on the back of left thigh 1 cm above the left knee joint. 5. Later on, during treatment, injured Bhola Nath and Vijay Kumar have expired. 6. (iii) Abraded contusion 3 cm x 2 cm on the left knee joint. (iv) Contusion 8 cm x 2 cm on the back of left thigh 1 cm above the left knee joint. 5. Later on, during treatment, injured Bhola Nath and Vijay Kumar have expired. 6. As per post-mortem report of deceased Shiv Dhari, he has sustained following injuries: (i) Incised wound 2.5 cm x 14 cm x brain deep over the right side head 3 cm above the middle of the upper eyebrow. Margin clear cut edge clear. (ii) Incised wound 3 cm x 0.5 cm brain deep on middle front of head 3 cm above the medial angle of the right upper eyebrow. Margin clear cut edge clear. (iii) Incised wound 3 cm x 1 cm x brain surface deep on the left side of head 2.5 cm above the left upper eyebrow. Margin clear cut edge clear. Cause of death of death is due to ante mortem head injury as a result of coma. 7. As per post-mortem report of deceased Bhola Nath Kumhar, he has sustained following injuries: (i) Lacerated wound 6 cm x 2 cm x bone surface deep on the right side head 1.5 cm above the right upper eyebrow (ii) Incised wound 1.5 cm x 1 cm x over the front middle of head just above the root of nose wound in brain surface deep. averted . (iii) Incised wound 4 cm x 1 cm x brain surface deep on the left side head 4 cm above the middle of left eyebrow. Margin of wound is clear cut edge clear. Cause of death is due to ante mortem head injury as a result of coma. 8. As per post-mortem report deceased Vijay Kumar, he has sustained following injuries: (i) Lacerated wound 3 cm x 2 cm on front of left shoulder. (ii) Lacerated wound 2 cm x 1 cm on the left side chest parallel to 12th rib. (iii) Lacerated wound 4 cm x 2 cm back of left elbow joint. Cause of death of deceased is due to shock as a result of ante mortem injury. 9. During treatment, Munni Lal also expired on 27.07.2014 and as per post-mortem report Ex.Ka-10, he has sustained following injuries: (i) Old contusion 1 cm x 0.5 cm over left upper eyelet. There is protrusion of left eyeball as a result of injury. Cause of death of deceased is due to shock as a result of ante mortem injury. 9. During treatment, Munni Lal also expired on 27.07.2014 and as per post-mortem report Ex.Ka-10, he has sustained following injuries: (i) Old contusion 1 cm x 0.5 cm over left upper eyelet. There is protrusion of left eyeball as a result of injury. (ii) Old contusion greenish black in colour. 10 cm x 5 cm in size over left forehead just above orbit. Dissectran of underlying skin shows clotted blackish blood Pus cell. 10. Investigation was conducted by (PW-10) S.I. Mohd. Nazim. During the course of investigation, statements of injured Shiv Dhari, Vijay Kumar @ Vijay Prakash and complainant Lalji and other witnesses were recorded. Site plan of the spot was prepared and the lantern was taken into possession. After completion of the investigation, all the accused persons were charge sheeted by Ex. Ka-16. 11. All the accused-appellants along with co-accused Kamla Mushar were charged under Sections 147, 302/149, 452/149, 307/149 of IPC. Accused persons pleaded not guilty and claimed trial. 12. In order to bring home guilt of the accused persons, prosecution has examined ten witnesses. Accused persons were examined under Section 313 Cr.P.C., wherein they have denied prosecution evidence and claimed false implication. Accused persons have alleged that injured persons were admitted in hospital by accused-appellant Prasidh Narayan. Alleged incident was committed by unknown persons in night and that no witness has identified the assailants. However, no evidence was led in defence. 13. Accused Kamla Mushar has expired during proceedings of trial and thus, proceedings were abated against her. 14. After hearing and analysing evidence on record, accused appellants were convicted under Sections 147, 302/149, 452/149, 307/149 of IPC by trial court vide impugned judgment and order dated 09.02.2016 and sentenced as stated in para no. 1 of this judgment. 15. Being aggrieved by the impugned judgment and order, accused-appellants Ram Janam and Ram Siromani have preferred Criminal Appeal No. 1620 of 2016, accused-appellant Amrit Lal has preferred Criminal Appeal No. 1661 of 2016, accused-appellant Ram Baran has preferred Criminal Appeal No. 1000 of 2016 and accused appellant Prasidh Narayan has preferred Criminal Appeal No. 932 of 2016. As all these appeals pertain to same incident and have been filed against common judgment and order, thus, these are being disposed of by this common judgment. 16. As all these appeals pertain to same incident and have been filed against common judgment and order, thus, these are being disposed of by this common judgment. 16. Heard Sri Mukhtar Alam and Sri Sukhbir Singh, learned counsel for accused-appellants, Sri Amit Sinha, learned A.G.A. for the State and perused the record. 17. Learned counsel for the appellants have argued that in his statement, PW-1 Lalji has clearly stated that appellants were not involved in this incident and he has specifically denied involvement of the accused appellants and that similarly, another eye witness PW-3 Babni has also stated in her cross-examination that after sustaining injuries, she has become unconscious and she could not see as to who have assaulted the deceased persons. It was stated that PW-3 Babni has stated in her cross-examination that when she came out of her home, all the assailants have already gone away. It was submitted that no eye witness has made any statement regarding involvement of accused appellants in the alleged incident. The incident in question took place at 10:30 pm and there is no reliable evidence that there was any source of light. It was further argued that trial court committed grave error by relying the statements of deceased persons recorded under Section 161 Cr.P.C., as dying declarations. Alleged statements of deceased persons have not been proved in accordance with law and thus, these statements cannot be treated as dying declarations. There is no evidence that injured were in a position to make such statements. Alleged statements have not been proved as dying declarations. It was submitted that the trial court has not appreciated the evidence properly and committed error convicting accused-appellants. 18. Per contra, it was submitted by learned State counsel that PW-3 Babni has deposed against all the accused-appellants. She has sustained injuries in the same incident and thus, there are no reasons to doubt her presence at spot. There is evidence on record that at the time of alleged incident, there was light of lantern and during investigation said lantern was taken into possession and thus, it cannot accepted that there was no lantern. It was further submitted that after incident, statements of injured persons were recorded and later on, three injured persons succumbed to injuries and thus, their statements have to be treated as dying declarations. All the accused-appellants have been named as assailants in the said dying declarations. It was further submitted that after incident, statements of injured persons were recorded and later on, three injured persons succumbed to injuries and thus, their statements have to be treated as dying declarations. All the accused-appellants have been named as assailants in the said dying declarations. Merely because said dying declarations have not been exhibited, it cannot a ground to doubt the same. It was stated that the trial court has appreciated the entire evidence properly and convicted the accused-appellants. The conviction of accused-appellants is based on evidence and it calls for no interference. 19. We have considered the rival submissions and perused the record. 20. In evidence, the complainant/P.W.1 Lal Ji has stated that his family was residing at village Sahni. His maternal uncle Shiv Dhari was also residing in the same village since last 3-4 years. His marriage has taken place only 4-5 days prior to the incident. In marriage function, a band party of his village was hired for Rs. 600/-. After marriage function, father of complainant has paid Rs. 300/- to the band party and promised to pay the remaining amount of Rs. 300/- within 3-4 days, but members of band party were insisting for whole payment immediately and they have threatened that they would realise the whole amount. Village Pradhan Prasidh Narayan has also threatened that if they (family of complainant) did not vacate the land, they would kill them. Due to said enmity, on 10.05.1994 at about 10.30 PM, accused-appellant Prasidh Narayan and band party members Ram Baran, Ram Siromani, Amrit Lal, Ram Janam, Kamla along with one more person, came at door of complainant and after hurling abuses, they started assaulting the family members of complainant. Resultantly, father of complainant, namely Bhola Nath, maternal uncle of complainant, namely Shiv Dhari, maternal aunt of complainant, Vavna Devi, Munni Lal and Vijay Kumar sustained injuries. When complainant/PW-1 Lal Ji objected, accused persons ran to assault him, however, he ran into his house and closed himself there. Hearing noise, one Keshav, Bhola Nath, Mangru, Ambika Prasad and others reached there but accused persons fled from spot. In this incident, Bhola Nath, Shiv Dhari, Munni Lal, Vijay Kumar and Babni sustained serious injuries. Injured were taken to District Government Hospital. Complainant/PW-1 Lal Ji reported matter to police by submitting tahrir exhibit ka-1. Hearing noise, one Keshav, Bhola Nath, Mangru, Ambika Prasad and others reached there but accused persons fled from spot. In this incident, Bhola Nath, Shiv Dhari, Munni Lal, Vijay Kumar and Babni sustained serious injuries. Injured were taken to District Government Hospital. Complainant/PW-1 Lal Ji reported matter to police by submitting tahrir exhibit ka-1. PW-1 Lal Ji further stated that Bhola Nath, Munni Lal and Shiv Dhari died due to injuries. In his cross-examination, PW-1 Lal Ji made a volta facie and inter-alia stated that he has not seen the accused-appellants assaulting the deceased and injured persons and accused-appellants were not involved in this incident. He stated that at the time of incident, he was sleeping inside his house and when reached near injured persons, no assailant was there. PW-1 Lal Ji has even stated that he has not dictated the content of complaint (exhibit ka-1), rather his signatures were obtained on blank paper and that he has not stated in tahrir exhibit ka-1 that accused-appellants were involved in the incident. 21. P.W-2 Keshav Prasad, has stated that in his presence, no sample of blood-stained or simple soil were taken from spot. Similarly he has denied that lantern was seized by the police in his presence. He stated that his signatures were obtained on blank papers. PW-2 Keshav Prasad was declared hostile by prosecution. 22. PW-3 Babni, has stated that on the night of incident, at about 9:00-10:00 PM, she was sleeping in side her house, whereas her husband Shiv Dhari and her sons were sleeping outside the home. Accused persons Prasidh and others, present in court, have attacked Bhola, Shiv Dhari, Munni Lal, Vijay Prakash as well as herself. The four injured persons have died. She further stated that on account land, there was enmity with Prasidh Narayan. She further stated that she remained in hospital for about 15 days. In her cross-examination, PW-3 Babni has stated that after sustaining injuries, she has become unconscious and has not seen as to who have sustained injuries outside the home. 23. PW-4 Dr. Yatendra Kumar Pathak, has conducted post-mortem on dead body of deceased Munni Lal. PW-7 Dr. CK Gupta has conducted post-mortem on dead body of deceased Shiv Dhari and Bhola Nath. PW-9 Dr. S.N. Pandey has conducted post-mortem on dead body of deceased Vijay. 24. 23. PW-4 Dr. Yatendra Kumar Pathak, has conducted post-mortem on dead body of deceased Munni Lal. PW-7 Dr. CK Gupta has conducted post-mortem on dead body of deceased Shiv Dhari and Bhola Nath. PW-9 Dr. S.N. Pandey has conducted post-mortem on dead body of deceased Vijay. 24. PW-5 Constable CP Dubey has recorded General diary entry regarding addition of section 302 IPC. 25. PW-6 SI Kutnu Prasad, has recorded FIR exhibit Ka-7 and General Diary entry exhibit ka-8. 26. PW-10 SI Mohd Nazim, has investigated the case. He has stated that on 11.05.1994, he has recorded statements of injured Shiv Dhari, Vijay, Lal Ji, Smt. Santosh and of complainant's brother Vakil. He prepared site plan of incident vide exhibit ka-15. After completion of investigation, he has submitted charge sheet exhibit ka-16. 27. In this case, conviction of accused-appellants is based on testimony of PW-1 Lal Ji and PW 3 Babni as well as on alleged dying declarations of deceased Shiv Dhari, Vijay Kumar @ Vijay Pratap and Munni Lal. 28. The case of prosecution regarding dying declaration is that in the alleged incident, Bhola Nath, Shiv Dhari, Munni Lal, Vijay Kumar have sustained injuries and while they were in injured condition, their statements were recorded by the Investigating Officer (PW-10) in the case diary under Section 161 Cr.P.C. Later on Bhola Nath, Munni Lal, Shiv Dhari and Vijay Kumar succumbed to injuries. There can be no doubt in legal position that if an injured person makes a statement regarding the incident as to how he sustained injuries and later on, he dies of same injuries, such a statement would fall within the ambit of 'dying declaration' as enshrined under section 32(1) of Evidence Act. The admissibility of dying declaration has been explained under Section 32 of Indian Evidence Act which states that such a statement can be proved when it is made by a person as to the cause of his death, or as to any of the circumstances of transaction which resulted in his death. So far as the position of law regarding dying declaration is concerned, it is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. So far as the position of law regarding dying declaration is concerned, it is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The 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 must be in a fit state of mind to make the declaration and must identify the assailants. In case of Koli Chunilal Savji Vs. State of Gujarat, AIR 1999 SC 3695 , the Hon'ble Apex Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also: Baburam v. State of Punjab, AIR 1998 SC 2808 ). 29. In case of Babulal v. State of M.P., (2003) 12 SCC 490 , it has been held as under:-. "7. ... A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. Then mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice." Dealing with the relevancy of dying declaration, Hon'ble the Apex Court in the case of Laxman v. State of Maharashtra reported in has held as follows:- "3. 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." In Atbir Vs. 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." In Atbir Vs. Government of NCT of Delhi, (2010) 9 SCC 1 , the Hon'ble Apex Court, after referring its earlier judgments, has laid following guidelines with regard to admissibility of the dying declaration: The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute Rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The Rule requiring corroboration is merely a Rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. 30. From the above stated pronouncements, it is clear that the law regarding dying declaration is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. 30. From the above stated pronouncements, it is clear that the law regarding dying declaration is well settled that if the court is satisfied that the dying declaration is true and made voluntarily by the deceased, conviction can be based solely on it, without any further corroboration. It is neither a rule of law nor of prudence that a dying declaration cannot be relied upon without corroboration. If the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. However, when a dying declaration is suspicious, it should not be relied upon without having corroborative evidence. The 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 must be in a fit state of mind to make the declaration and must identify the assailants. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. 31. Keeping in view the cautions reminded from time to time by the Hon'ble Apex Court in dealing with the evidence and dying declaration, in the present case, scrutiny of evidence shows that in the alleged incident, the above stated Shiv Dhari, Vijay Kumar and Munni Lal have sustained injuries and later on died during treatment in hospital. Learned trial court has treated the statements of above stated three deceased persons, presumably recorded by Investigating Officer PW-10 under section 161 Cr.P.C., as dying declarations. As stated earlier, the statements of said persons may fall within the ambit of section 32(1) of Evidence Act, but the question is whether in such facts and circumstances, the requirement of proving a dying declaration in accordance with well settled law can be dispensed with. Whether mere statements of these deceased persons, as recorded in case diary, can be acted upon as dying declaration, without proving the same? The answer would obviously be in negative. Whether mere statements of these deceased persons, as recorded in case diary, can be acted upon as dying declaration, without proving the same? The answer would obviously be in negative. Prosecution can use such a statement of injured recorded under section 161 Cr.P.C., as dying declaration provided such statement has been proved in accordance with law laid down for proving a dying declaration. In the instant case, mere evidence in this regard is that PW-10 SI Mohd Nazim, who has investigated the case, stated that on 11.05.1994, he has recorded statements of injured Shiv Dhari and Vijay. It is clear from the impugned judgment that the trial court has also relied upon the statement of Munni Lal (besides statements of Shiv Dhari and Vijay), recorded under section 161 Cr.P.C., as dying declaration, but the Investigating Officer PW 10 SI Mohd. Nazim has not stated a single word that he has recorded the statement of deceased Munni Lal. Thus, so far as the alleged statement of said deceased Munni Lal is concerned, which has been relied by the trial court as dying declaration, there is absolutely no evidence to prove the same. 32. So far as the statements of deceased Shiv Dhari and Vijay Kumar are concerned, the only evidence to prove these statements as dying declarations is that of PW-10 SI Mohd Nazim, who has merely stated that on 11.05.1994, he has recorded statements of Shiv Dhari and Vijay Kumar under section 161 Cr.P.C., while they were in injured condition. Surprisingly, no question was asked by the defence in cross-examination of PW-10 SI Mohd. Nazim regarding these statements, however, question remains whether by mere bald cryptic statement of PW-10 Mohd. Nazim that he has recorded statements of said Shiv Dhari and Vijay under section 161 Cr.P.C., it could be said that such statements have been proved as dying declarations. Neither these statements have been exhibited nor their contents were spoken by PW-10 Mohd. Nazim or by any other witness. The trial court has treated the statements of said persons recorded in case diary as substantive piece of evidence in the form of dying declarations. Further, there is absolutely no evidence on record that, at the time of alleged statements, these injured were in fit state of mind to make such a statement. Nazim or by any other witness. The trial court has treated the statements of said persons recorded in case diary as substantive piece of evidence in the form of dying declarations. Further, there is absolutely no evidence on record that, at the time of alleged statements, these injured were in fit state of mind to make such a statement. Prosecution did not care to exhibit these statements and tender the same in evidence in the form of dying declarations. PW-10 Mohd. Nazim, who allegedly recorded these statements, has not even mentioned anything that what were the contents of statements of said deceased persons. If prosecution was relying on statements of said deceased persons, as their dying declarations, it was incumbent that these statements must have been proved and exhibited in accordance with law but nothing of this sort was done. 33. Further, the alleged statements of said injured persons have not been recorded in accordance with Para-115 of the Uttar Pradesh Police Regulations. For ready reference Para-115 of the U.P. Police Regulations is extracted below: Para-115 of the U.P. Police Regulations. "The officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary where his dying declaration can be recorded should himself record the declaration at once in the presence of two respectable witnesses, obtaining the signature or mark of the declarant and witnesses at the foot of the declaration." In the instant case, there is nothing to show that any compliance of above stated provision was made. Thus, alleged statements have not been recorded in accordance with said regulation. Though compliance of this regulation cannot be said mandatory, but coupled with other infirmities in alleged dying declarations, it would affect the prosecution case regarding alleged dying declarations adversely. 34. It would also be relevant to mention that in examination under section 313 Cr.P.C., the only question, regarding alleged dying declarations, asked from the accused-appellants, was that the Investigating Officer has recorded the statements of witnesses. No such question was asked that the prosecution has proved statements of deceased persons as dying declarations or that said deceased persons have named them as assailants. Most important aspect is that no content of statements (alleged dying declarations) of deceased persons, whose statements have been relied as dying declarations, were put to the accused-appellants. No such question was asked that the prosecution has proved statements of deceased persons as dying declarations or that said deceased persons have named them as assailants. Most important aspect is that no content of statements (alleged dying declarations) of deceased persons, whose statements have been relied as dying declarations, were put to the accused-appellants. In view of these attending facts and circumstances, reliance on alleged statements as dying declarations, would result into prejudice to the accused-appellants. It is trite that the incriminating material is to be put to the accused, so that the accused gets a fair chance to defend himself. This is in recognition of the principles of audi alteram partem. In this regard, we may usefully refer to the judgment of the Apex Court in Asraf Ali v. State of Assam, (2008) 16 SCC 328 . The relevant observations are in the following paragraphs: "21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether such lapse caused miscarriage of justice or prejudice. The Apex Court also expressed similar view in S. Harnam Singh Vs. State, AIR 1976 SC 2140 , while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. The Apex Court also expressed similar view in S. Harnam Singh Vs. State, AIR 1976 SC 2140 , while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise. While making the aforesaid observations, the Court also referred to its earlier judgments of three Judge Bench in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 , which considered the fall out of the omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence and the requirement that the accused's attention should be drawn to every inculpatory material so as to enable him to explain it. Ordinarily, in such a situation, such material as not put to the accused must be eschewed. No doubt, it is recognised, that where there is a perfunctory examination under Section 313 of the Cr.P.C., the matter is capable of being remitted to the trial court, with the direction to retry from the stage at which the prosecution was closed, however in the instant case, it would relevant to observe that alleged incident is said to have taken place on 10.05.1994. After lapse of such a long period and considering the fact that dying declarations have not been proved in accordance with law, it does not appears desirable to remand the case to trial court to proceed afresh from the stage of recording of statements of accused persons. 35. In view of above, the alleged statements of deceased persons, which have been relied by trial court as dying declarations, cannot be used against accused-appellants for the reasons that neither these statements have been proved in accordance with law nor the same were put to the accused-appellants in their examination under section 313 Cr.P.C. In view of these facts, alleged statements of deceased Shiv Dhari, Vijay Kumar and Munni Lal cannot be used against accused-appellants. 36. 36. So far as evidence of P.W-1 Lal Ji and PW-3 Babni is concerned, it may be observed that in his examination-in-chief, PW-1 Lal Ji has stated that accused-appellant Prasidh Narayan, Ram Baran, Ram Siromani, Amrit Lal, Ram Janam and Kamla Mushar, along with one more person have assaulted the deceased and injured persons, but in his cross-examination, he has backtracked from said version and inter-alia stated that he has not seen the accused-appellants assaulting the deceased and injured persons and that accused-appellants were not involved in this incident. He stated that at the time of incident, he was sleeping inside his house and when he reached near injured persons, no assailant was present there. PW-1 Lal Ji has even stated that he has not dictated the contents of complaint (exhibit ka-1), rather his signatures were obtained on blank paper and that he has not stated in tahrir exhibit ka-1 that accused-appellants were involved in the incident. Similarly, PW-3 Babni has stated that accused persons Prasidh Narayan and others, present in court, have attacked Bhola, Shiv Dhari, Munni Lal, Vijay Prakash as well as herself and that four injured persons have died, but in her cross-examination, she has stated that after sustaining injuries, she has become unconscious and she has not seen as to who have sustained injuries outside the home. She further stated that when deceased persons were being assaulted outside the home, she was inside the home and that when she came outside the house, the deceased have already died. 37. In view of the facts emerged in cross-examination of P.W.1 Lal Ji and PW-3 Babni, it is clear that their evidence is not of impeccable character. Evidence of P.W.1 Lal Ji and PW-3 Babni is not consistent and cogent and they have made contradictory statements. In attending facts and circumstances of the case, it does not appear safe to rely and act upon the statements of P.W-1 Lal Ji and PW-3 Babni. Similarly, as noticed above, alleged dying declarations of deceased Shiv Dhari, Vijay Kumar and Munni Lal were neither proved nor the same were properly put to accused persons, thus alleged dying declarations cannot be made basis of conviction of accused-appellants. Here it would also be relevant to mention that defence has put up a case that alleged incident was committed by unknown persons in night and no assailant could be identified in night. Here it would also be relevant to mention that defence has put up a case that alleged incident was committed by unknown persons in night and no assailant could be identified in night. Here it may be stated that as per prosecution case there was light of lantern, but PW-2 Keshav Prasad, who was witness of seizure of lantern, has not supported prosecution version and stated that no lantern was seized in his presence. It was also the case of defence that injured persons were admitted in hospital by accused Prasidh Narayan. All these facts are not consistent with prosecution case. Considering all these facts along with conclusion that alleged dying declarations cannot be considered against accused-appellants and that testimony of PW-1 Lalji, PW-3 Babni is not found credible, it is clear that involvement of accused-appellants becomes doubtful. In view of the evidence available on record and discussion made hereinabove, it is apparent that trial court was not justified in convicting the accused-appellants. Before parting with this judgment, we are constrained to observe that it was a case, where four persons have lost their lives and two persons have sustained injuries, but despite that, the prosecution before trial court was conducted in a most pathetic and casual manner. Once the injured persons have succumbed to injuries and if they have made any statement before their death, such statements must have been duly proved in accordance with law, but it was not done. One fact to be noticed is that the alleged incident took place on 11.05.1994, whereas recording of evidence was started on 22.07.2006, i.e., after 12 years of incident. Perhaps this period was sufficient to win over the witnesses. It may further be observed that though primarily, it is the duty of prosecution that what evidence is to be led, but it is also incumbent upon the court to ensure that all relevant and necessary evidence is brought on record so as avoid any failure of justice. Perhaps this period was sufficient to win over the witnesses. It may further be observed that though primarily, it is the duty of prosecution that what evidence is to be led, but it is also incumbent upon the court to ensure that all relevant and necessary evidence is brought on record so as avoid any failure of justice. In this case, the trial court overlooked the fact that neither the alleged statements of deceased persons have been proved in accordance with law nor the contents of the same were put to the accused persons in their examination under Section 313 Cr.P.C. Further, once the statements of P.W.1 Lal Ji and PW-3 Babni were quite shattering and suffering from discrepancies, the court must have summoned other eye-witness, but it was also not done. 38. Be that as it may, considering the entire evidence available on record and the analysis made hereinabove, it is clear that prosecution has failed to prove its case beyond doubt and thus, conviction and sentence of accused-appellants, namely, Ram Janam, Ram Siromani, Ram Baran, Prasidh Narayan and Amrit Lal is set aside and they are acquitted of the charges levelled against them. Accused-appellants Ram Janam, Ram Siromani, Ram Baran, Prasidh Narayan and Amrit Lal are stated in Jail and thus, they be released forthwith, if not wanted in any other case. 39. All appeals are allowed. 40. A copy of this judgment be transmitted to court concerned forthwith for necessary compliance.