JUDGMENT : Shree Chandrashekhar, J. In Sessions Trial Case No. 303 of 2010, the appellants, namely, Sudama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto and Yogendra Mahto who were put on trial on the charge under sections 147, 148, 302 read with section 149 of the Indian Penal Code have been convicted and sentenced to RI for two years under section 147 of the Indian Penal Code, RI for three years under section 148 of the Indian Penal Code and RI for life with a fine of Rs. 10,000/- each under section 302 of the Indian Penal Code. In default of payment of the fine amount of Rs. 10,000/- each they are liable to undergo further SI for six months. 2. The case of the prosecution is that Bhola Mahto had a land dispute with the accused who in the afternoon of 20.01.2010 assaulted him and caused grievous injuries. He was admitted in the clinic of Dr. R.C. Prasad where he gave his fardbeyan at about 08: 1 0 PM before Raj Kumar Singh, ASI of Barkagaon police station. Looking at the serious condition of Bhola Mahto, he was referred for better treatment to RIMS, Ranchi, however, he succumbed to the injuries within few hours. On the basis of his fardbeyan, Barkagaon PS Case No. 11 of 2010 was registered under sections 147, 148, 149, 341, 323, 324, 325, 307 and 379 of the Indian Penal Code, against Sudama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto, Yogendra Mahto. Later on, the offence under section 302 of the Indian Penal Code was added in the report vide order dated 25.01.2010. After the investigation a charge-sheet was submitted against the appellants while investigation against Khiru Mahto and Rajkeshar Mahto was pending. Vide order dated 20.04.2010, the learned Chief Judicial Magistrate, Hazaribagh took cognizance of the offence under sections 147, 148, 149 and 302 of the Indian Penal Code and as noticed above the appellants have faced the trial on the charge of causing death of Bhola Mahto in furtherance of common object of the unlawful assembly - a common charge under sections 147, 148 and 302/149 of the Indian Penal Code was framed vide order dated 31.08.2010. In Course of the investigation, brother, nephew, son and wife of Bhola Mahto were examined by the Investigating Officer and they spoke about involvement of the accused in causing death of Bhola Mahto. In Course of the investigation, brother, nephew, son and wife of Bhola Mahto were examined by the Investigating Officer and they spoke about involvement of the accused in causing death of Bhola Mahto. The inquest was conducted at RIMS, Ranchi around 10:30 AM on 21.01.2010 by one Tulsi, ASI of Bariatu police station, and the dead body of Bhola Mahto was received for postmortem at 11 :00 AM. 3. The postmortem was conducted by Dr. Tulsi Mahto and Dr. Sawan Mundri who did not come to the witness box and their report was sought to be proved through Dr. Ajit Kumar Choudhary who has proved their signatures on the postmortem report. 4. The postmortem report mentions the following injuries on the dead body of Bhola Mahto: "1. Abrasion: a. 1 x 1/2, 1/2 x 1/2, 1/2 x 1/2on the right scapular region. b. 4 x 1/2 cm part of right thigh upper part. c. 3 x 1, 5 x 2, 2 x 1 cm right thigh upper part. d. 3 x 2 cm right leg upper part. e. 1 x 1/2 cm front of right leg upper part. g. 6 x 1/4, 3 x 1/4 cm left thigh lateral side upper part. h. 5 x 1/4, 4 x1/4, 1 x 1/2 cm left thigh lateral side middle part. 2. Lacerated stitch wound: (a) 1 x 1/2 cm soft tissue and two stitches front of left knee upper part. (b) 2 x 1/2 cm soft tissue two stitches left knee medial side. (c) 3 x 1/2 cm bone deep three stitches left leg medial side lower part, fracture of left tibia and fibula bone lower part. (d) 2 x 1/2 cm soft tissue two stitches right knee medial side. (e) 3 x 1/2 cm bone deep three stitches right leg medial side lower part with fracture of right tibia and fibula bone. 3. Internal: There was fracture of left tibia and fibula bone upper part. " 5. In the trial, the prosecution has examined eleven witnesses out of whom PWI-Dugar Mahto, PW2-Khaleshwar Mahto, PW6-Suresh Prasad, PW8-Bajrangi Kumar, PW 10- Vijay Mahto and PW 11-Most. Basmati have claimed that Bhola Mahto made oral dying declaration before them. The learned trial Judge has treated the statement of Bhola Mahto recorded by Raj Kumar Singh a dying declaration and proceeded to examine whether the dying declaration is reliable and inspires confidence of the Court. Basmati have claimed that Bhola Mahto made oral dying declaration before them. The learned trial Judge has treated the statement of Bhola Mahto recorded by Raj Kumar Singh a dying declaration and proceeded to examine whether the dying declaration is reliable and inspires confidence of the Court. 6. The learned Additional Sessions Judge-X, Hazaribagh has appreciated the materials laid during the trial in the following manner: "25. First I would like to focus on the Fardbayan which was made by the deceased after few hours of the occurrence. The deceased had stated that when he was returning after sprinkling pesticide at his tomato field Yogendra Mahto, Sudama Mahto, Budhan Mahto, Puran Mahto and Santoshi Devi were ready and standing with arms. Yogendra Mahto is the husband of Santoshi Devi and Sudama Mahto is father of Yogendra Mahto. Further Budhan Mahto is the son of Puran Mahto and latter is itself an accused. Out of five persons three belongs to one family and two belongs to another family. It is said that the deceased noticed these five persons, he rushed and thereafter he was overpowered by Sudama Mahto and dashed on the ground and Santoshi Devi gagged his mouth and thereafter Yogendra Mahto assaulted with Tangi inflicting assault upon his both legs. He was crying for help. It is further added that Budhan and Puran blindly inflicted lathi assault and he lost his sense. He has taken name of two persons Ravindra Kumar Mahto and Rakesh Kumar who carried him to the clinic of Dr. R. C. Prasad. The deceased had not taken the name of Khiru and Ramkeshar. The cause of occurrence has been stated as land dispute and old enmity. The said Fardbayan has been identified by PW 5, however no Exhibit number has been accorded to the Fardbayan. The status of Fardbayan has been reduced to one covered u/s 32(1) of the Indian Evidence Act. The deceased died on the same night when he was referred to Ranchi. The police official who recorded the dying declaration did not get certificate of the doctor R. C. Prasad about physical and mental condition of the deceased. The defence lawyer questioned that status of Fardbayan and said that it is developed story since it has some in-built infirmities and there is no corroboration of the dying declaration. The police official who recorded the dying declaration did not get certificate of the doctor R. C. Prasad about physical and mental condition of the deceased. The defence lawyer questioned that status of Fardbayan and said that it is developed story since it has some in-built infirmities and there is no corroboration of the dying declaration. In several verdicts of the Hon'ble Apex Court, it has been held that dying declaration may be basis of conviction if same is trustworthy, however if there is no suspicion corroboration is required. " 7. Mr. Indrajit Sinha, the learned counsel for the appellants would submit that the dying declaration of Bhola Mahto was surrounded by suspicious circumstances and there is no evidence on record to show that Bhola Mahto was in a fit condition to make a dying declaration. It is contended that the inquest and postmortem reports were not proved according to law and since cause of death of Bhola Mahto was not established the dying declaration recorded by Raj Kumar Singh at 08:10 PM at the clinic of Dr. R.C. Prasad on 20.01.2010 cannot be looked into. The learned counsel would further contend that once a doubt arises on making of a dying declaration the Court must look for corroboration and on the basis of a doubtful dying declaration conviction of an accused cannot be recorded. 8. There is no eyewitness to the occurrence and during the trial PW8 who is son of Bhola Mahto and PW11 who is wife of Bhola Mahto tried to project themselves as eyewitnesses but during the cross-examination they seem to concede that they are not the eyewitnesses. The case of the prosecution hinges on the dying declaration of Bhola Mahto. An accused can be convicted solely on the basis of a dying declaration and as held in "Jaswant Singh v. State (Delhi Admn.)" (1978) 4 SCC 85 even on the basis of uncorroborated dying declaration conviction of an accused can be maintained. From the judgments cited at Bar, we gather that the only requirement in law is that the dying declaration should be free from embellishment and inspire confidence of the Court. In the present case not only reliability and truthfulness of the dying declaration of Bhola Mahto are under severe attack by the appellants the very making of the dying declaration is also challenged. 9. In the present case not only reliability and truthfulness of the dying declaration of Bhola Mahto are under severe attack by the appellants the very making of the dying declaration is also challenged. 9. The circumstances under which dying declaration of Bhola Mahto was recorded at 08:10 PM on 20.01.2010 at the clinic of Dr. R.C. Prasad raise serious apprehensions. According to the prosecution, Bhola Mahto was assaulted in his tomato field at around 03 :00 PM and PW-2 has stated in the Court that it takes about 15-20 minutes to reach the clinic from his village. The postmortem report mentions five stitched wounds on the dead body of Bhola Mahto and on that basis it can be reasonably inferred that he remained at the clinic of Dr. R.C. Prasad for sometime where he was treated, however, statement of Dr. R.C. Prasad or a nurse or any other doctor who might have attended Bhola Mahto was not recorded in course of investigation. In his cross-examination, Raj Kumar Singh who has recorded dying declaration of Bhola Mahto has admitted that he did not try to record statement of Dr. R.C. Prasad. The witnesses who could have thrown considerable light on the physical and mental state of Bhola Mahto whether he was in a fit condition to speak were not produced during the trial. We would assume that there was little time for the family members of Bhola Mahto and the Investigating Officer to call a Magistrate to record the statement of Bhola Mahto, however, absence of statement of Dr. R.C. Prasad or any other doctor/nurse who attended Bhola Mahto at the clinic where he was treated is a circumstance which we would keep in mind in the context of the judgments of Hon'ble Supreme Court in "Laxman v. State of Maharashtra" (2002) 6 SCC 710 and "Purshottam Chopra v. State (NCT of Delhi)" (2020) 11 SCC 489 , which are referred to by the learned counsel for the appellants, that certification by a doctor about condition of a victim of crime that he was in a fit condition to make a statement is not an absolute necessity if there are materials on record to show that the victim has made a dying declaration before the police. We would also keep in mind the prosecution evidence which varies in large extent on the manner of occurrence and whether Bhola Mahto who if at all was conscious was in a fit condition to make a statement revealing complicity of the persons who had assaulted him. It has also remained a kind of mystery who brought Bhola Mahto in the clinic of Dr. R.C. Prasad for his treatment. This also needs to be kept in mind that some of the prosecution witnesses have stated that when an outcry was raised in the village they came to know about assault upon Bhola Mahto and came to the clinic of Dr. R.C. Prasad and it is evidence of the prosecution of a definite character that a large crowd had gathered outside the clinic of Dr. R.C. Prasad. 10. In the aforesaid background, we would now examine testimony of the prosecution witnesses keeping in mind that all the material witnesses are intimately related to Bhola Mahto and in their cross-examination PW8 and PW 11 have admitted that there was a land dispute with the accused. 11. In "Ramanand Yadav v. Prabhu Nath Jha" (2003) 12 SCC 606 it has been observed that the Court has a duty to analyse the evidence of an interested witness with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth. In "Sarwan Singh v. State of Punjab" (1976) 4 SCC 369 the Hon'ble Supreme Court has observed that the evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. 12. PWI who is brother of Bhola Mahto has admitted in the Court that he is not an eyewitness and his statement in the examination-in-chief is based on the information given by his brother. He has stated that five persons carrying tangi, lathi etc. chased his brother and when he ran towards canal (nahar) Khiru Mahto and Rajkeshar Mahto apprehended him, thrashed him on the ground and struck his chest with violent forces. The other accused who had also by then reached there assaulted him - Yogendra Mahto inflicted indiscriminate tangi blows on his both legs. chased his brother and when he ran towards canal (nahar) Khiru Mahto and Rajkeshar Mahto apprehended him, thrashed him on the ground and struck his chest with violent forces. The other accused who had also by then reached there assaulted him - Yogendra Mahto inflicted indiscriminate tangi blows on his both legs. In his cross-examination, PW 1 has stated that he was at home and he could know about the occurrence on hulla. He has further stated that at around 06:00-07:00 PM he had reached the clinic of Dr. R.C. Prasad and the police arrived there about 5-10 minutes thereafter. Two things are important in his evidence; first, Bhola Mahto put his LTI on the fardbeyan and on plain paper, and in his presence no one had put signature on the fardbeyan. PW2, who is nephew of Bhola Mahto has deposed in the Court that he on hearing hulla had gone to the clinic of Dr. R.C. Prasad at around 06:00 PM. His uncle told him that the accused six in number chased him and assaulted him. He admits that he is not an eyewitness and his statement was recorded by the police at his house about twenty days after the occurrence. His evidence is important for the reason that he has indicated distance of the clinic of Dr. R.C. Prasad from his village - he has said that it takes about 15-20 minutes to reach the clinic of Dr. R.C. Prasad. PW3 who is the inquest witness has stated that he saw Bhola Mahto in injured condition, he was crying 'bachao-bachao' and at that time no other person was around the field where Bhola Mahto was lying injured. He is the person who with help of the villagers brought Bhola Mahto to the clinic of Dr. R.C. Prasad, but he does not claim that Bhola Mahto informed him name of the as saulters rather his definite stand in the Court is that he heard from the others that Yogendra Mahto, Sudama Mahto, Puran Mahto and others had assaulted him. PW4 is a neighbour who has stated in the Court that wife of Bhola Mahto asked him to take her to the tomato field where a marpit had occurred. He dropped her at Karnpura college where he has seen Bhola Mahto injured, drenched in blood with broken legs. PW4 is a neighbour who has stated in the Court that wife of Bhola Mahto asked him to take her to the tomato field where a marpit had occurred. He dropped her at Karnpura college where he has seen Bhola Mahto injured, drenched in blood with broken legs. Thereafter the Principal of Karnpura college brought Bhola Mahto at the clinic of Dr. R.C. Prasad. PW5 is the first Investigating Officer who has recorded statement of Bhola Mahto at the clinic of Dr. R.C. Prasad and PW 7 is the second Investigating Officer who has stated in the Court that he recorded statement of the witnesses on 11.04.2010 at the police station. PW6 is cousin brother of Bhola Mahto. He is a signatory to the fardbeyan. He has stated in the Court that the fardbeyan of Bhola Mahto was recorded in his presence and it was read over to Bhola Mahto who having found it correctly recorded put his thumb impression on his statement. In his cross-examination he has stated that Bhola Mahto in his statement before the police has stated about complicity of only three persons, namely, Yogendra Mahto, Sudama Mahto and Santoshi Devi. He has further stated that in the clinic, Bhola Mahto was speaking to him only and he had accompanied him from Barkagaon to Ranchi where he was being taken for further treatment, however, on the way he succumbed to the injuries. His further evidence is that a large crowd had gathered at the clinic of Dr. R.C. Prasad and there was huge commotion around there. PW8 is son of Bhola Mahto who has affirmed in the Court that the fardbeyan of his father was recorded at the clinic of Dr. R.C. Prasad and on the way to Ranchi he had died. At the time of occurrence he was at home and when his father did not come back home by the evening in course of search he found him lying injured near the canal (nahar) about half kilometer away from his tomato field. He says that his family members carried his father to the clinic of Dr. R.C. Prasad and in his presence hisfardbeyan was recorded. From his testimony it is quite clear that after the assault Bhola Mahto had become unconscious and his mother and the villagers had brought his father in the hospital (clinic of Dr. R.C. Prasad) in injured condition. He says that his family members carried his father to the clinic of Dr. R.C. Prasad and in his presence hisfardbeyan was recorded. From his testimony it is quite clear that after the assault Bhola Mahto had become unconscious and his mother and the villagers had brought his father in the hospital (clinic of Dr. R.C. Prasad) in injured condition. In his cross-examination he admits that his father is literate but he has put his thumb impression on his statement (fardbeyan). On this point the defence had suggested that the thumb impression on the fardbeyan is not of Bhola Mahto rather some other person put his thumb impression on the statement recorded by Raj Kumar Singh, but as expected he has denied the suggestion. PW 10 has stated that when Bhola Mahto was brought to the clinic of Dr. R.C. Prasad he was unconscious with several injuries on his chest, legs and private parts. But surprisingly he claims that on inquiry Bhola Mahto informed him about the incident and complicity of the accused. In his cross-examination he says that Bhola Mahto told him about the occurrence in presence of Dr. R.C. Prasad and at that time police was also present there. He says that his statep1ent was not recorded by the police and he is not the person who had brought Bhola Mahto for treatment. PW11 who is wife of Bhola Mahto has deposed in the Court that in the afternoon of 20.01.2010 she was accompanying her husband to sprinkle pesticide in the tomato field and Sudama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto and Yogendra Mahto waylaid him. Her husband trying to save himself ran towards canal (nahar) where Khiru Mahto and Rajkeshar Mahto caught hold of him and started assaulting him. She further says that on hulla she in course of search found her husband lying injured near the Karnpura college and she brought him to the clinic of Dr. R.C. Prasad. On her own account she is not a witness who can say who have assaulted her husband and how he was assaulted. In her cross-examination she says that when the fardbeyan of her husband was recorded he was conscious and she cannot say who were the other persons present there when his statement was recorded. R.C. Prasad. On her own account she is not a witness who can say who have assaulted her husband and how he was assaulted. In her cross-examination she says that when the fardbeyan of her husband was recorded he was conscious and she cannot say who were the other persons present there when his statement was recorded. In paragraph No. 11 of her cross-examination she admits that at the time of occurrence she was at home and therefore her admission demolishes her claim that she had accompanied her husband to the tomato field and saw the appellants, namely, Sudama Mahto, Santoshi Devi, Budhan Mahto, Puran Mahto and Yogendra Mahto chasing her husband. 13. A dying declaration is a valuable piece of evidence and it is accorded a special place in a criminal trial. The Latin phrase 'nemo moriturus praesumitur mentine' which means no one would meet the Maker with a lie in his mouth is the underlying thought for admitting a dying declaration against the rule of hearsay. A dying declaration can be written or oral but the truthfulness and accuracy of statement of a person whose words were reduced in writing or spoken by another witness cannot be tested by cross-examination and, therefore, it is not considered the best evidence. But, there are certain carefully carved out exceptions to the rule of hearsay, for example, sections 6, 8 and 32 of the Evidence Act. The statement of a victim can be admitted as part of res gestae on account of its spontaneity and a live link between the cause of occurrence. It is admitted in evidence also under section 32(1) of the Indian Evidence Act as a relevant fact. Section 32(1) of the Indian Evidence Act provides that statement of a person who is found dead or cannot be found etc. is relevant and as indicated therein not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. The statement of Bhola Mahto which has been admitted in evidence as dying declaration was proved and marked as Exhibit-3 during the trial. The witnesses have affirmed in the Court that the statement of Bhola Mahto was recorded by Raj Kumar Singh at the clinic of Dr. The statement of Bhola Mahto which has been admitted in evidence as dying declaration was proved and marked as Exhibit-3 during the trial. The witnesses have affirmed in the Court that the statement of Bhola Mahto was recorded by Raj Kumar Singh at the clinic of Dr. R.C. Prasad and on such facts it may be accepted that Bhola Mahto gave his statement to Raj Kumar Singh. 14. There is no dispute that Bhola Mahto was admitted in the clinic of Dr. R.C. Prasad and we would assume that the prosecution witnesses had also arrived in the clinic, but what needs to be examined is whether the dying declaration of Bhola Mahto is a result of tutoring, prompting or his imagination, and whether there are circumstances indicating that dying declaration of Bhola Mahto is a concocted story. To begin, we find serious discrepancies in the testimony of the prosecution witnesses as to their time of arrival in the clinic and how they could get information about the occurrence. PW5, the first Investigating Officer who has recorded statement of Bhola Mahto has stated that he received a call from the clinic of Dr. R.C. Prasad. No one has come forward to support him that an information was sent to the police station from the clinic of Dr. R.C. Prasad. He admits in. the Court that he did not reduce in writing (Station Diary Entry) the information received from the clinic of Dr. R.C. Prasad. He is not officer-in-charge of the police station and, therefore, on his own he could not have proceeded to the clinic of Dr. R.C. Prasad to verify the information. He does not even say what information he received telephonically from the clinic of Dr. R.C. Prasad and he has also not stated that officer-in-charge of Barkagaon police station directed him to visit the clinic and verify the information. He does not say anything about death of Bhola Mahto - when, where and how he had died; he did not visit RIMS, Ranchi where inquest was prepared and he is not the person who has sent the dead body for postmortem examination. PW7, the second Investigating Officer has stated in the Court that he took over charge of investigation on 22.02.2010 because PW5 was put to suspension. Mr. PW7, the second Investigating Officer has stated in the Court that he took over charge of investigation on 22.02.2010 because PW5 was put to suspension. Mr. Indrajit Sinha, the learned counsel for the appellants has submitted that evidence of PW5 is full of inconsistencies and he was a delinquent- officer whose testimony should not be trusted by the Court. PW6 has stated that on a call from the family of Bhola Mahto he had gone to the clinic of Dr. R.C. Prasad - he does not specify name of the family member of Bhola Mahto. The prosecution witnesses who are family members of Bhola Mahto have not stated in the Court that on their call PW6 came to the clinic. The prosecution evidence is that the witnesses had gone to the clinic when they heard hulla. PW6 has stated that Bhola Mahto was speaking to him only; PWIO has stated that Dr. R.C. Prasad and the police were present there when Bhola Mahto told him about complicity of the accused in murderous attack on him, and; PW I has stated that thumb impression of Bhola Mahto was taken on a plain paper. If their evidences have to be believed the stand taken by them and other witnesses that Bhola Mahto informed them the name of his as saulters becomes so inconsistent and doubtful to rely upon their testimony. 15. Furthermore, in the evidence tendered by the prosecution witnesses, serious inconsistencies regarding the place of occurrence, manner of occurrence and state of consciousness of Bhola Mahto have appeared. According to some witnesses Bhola Mahto who was admitted in the clinic of Dr. R.C. Prasad for treatment was found unconscious while others have stated that he was speaking after assault at the place of occurrence, and he was brought unconscious in the clinic is the evidence of PW 10. This is the prosecution evidence that within 15-20 minutes Bhola Mahto could have been brought to the clinic and there is no doubt that he was treated there by the doctors, however, there is a delay of about five hours in recording his statement. 16. In "Meharaj Singh (L/Nk.) v. State of UP. " (1994) 5 SCC 188 the Hon'ble Supreme Court has observed as under: "12. 16. In "Meharaj Singh (L/Nk.) v. State of UP. " (1994) 5 SCC 188 the Hon'ble Supreme Court has observed as under: "12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. " 17. A delay in registration of a First Information Report is necessarily a question of fact and whether the delay is fatal for the prosecution has to be decided in the facts and circumstances of the case. The prosecution is not required to explain each hour's delay and use of the First Information Report in a criminal trial is very limited. But in a case where the First Information Report is based on a dying declaration which was recorded about five hours after the incident, delay in recording the statement of the victim should have been explained by the prosecution. The prosecution evidence is that a large crowd had gathered at the clinic of Dr. R.C. Prasad and PWI says that about 5 to 10 minutes after he reached the clinic between 6:00-7:00 PM the police arrived there. PW1 and PW10 both have stated that when Bhola Mahto made oral dying declaration before them the police was present there, still, the dying declaration was recorded at 8: 1 0 PM. In these facts the defence set up by the appellants that dying declaration of Bhola Mahto is a concocted document cannot be brushed aside summarily. 18. PW3 who has stated in the Court that with help of the villagers he brought Bhola Mahto in the clinic does not claim that Bhola Mahto made a statement before him narrating the incident and involvement of the appellants in the occurrence. 18. PW3 who has stated in the Court that with help of the villagers he brought Bhola Mahto in the clinic does not claim that Bhola Mahto made a statement before him narrating the incident and involvement of the appellants in the occurrence. Bhola Mahto was in a precarious condition and he had died within few hours. A person who was brutally assaulted, suffered as many as eight injuries (vaguely termed by doctor as abrasions) of varying dimensions all over his body and at least five deep cut bone injuries must have been in severe pain and, therefore, administered painkillers and anesthesia which definitely would cause delusion - the dying declaration of Bhola Mahto records that he was administered injection in the right hand. In these facts which create a doubt on the condition of Bhola Mahto whether he was conscious and if so whether he was in a fit state to make statement, absence of a certification by the doctor on the condition of Bhola Mahto would be another suspicious circumstance which surrounds the dying declaration. 19. In the context of medical certification about condition of the victim to make a statement, we would refer to the judgment in "Panchanand Mandal v. State of Jharkhand" (2013) 9 SCC 800 wherein the Hon'ble Supreme Court has made the following observations: "15. Ext. 4, the dying declaration also suffers from infirmities. The author who recorded the dying declaration C. Paswan, ASI was not produced by the prosecution for examination or cross-examination. The explanation given by the prosecution in this matter was that the attendance of the ASI could not be secured in spite of summons issued against him and the letters written to the Superintendent of Police, Deoghar and Giridih. The trial court wrongly held that this was a convincing explanation. In fact, non-appearance of ASI has prejudicially affected the defendant's interest as they were denied the opportunity to cross-examine him. It is admitted that dying declaration (Ext. 4) was not certified by any medical expert stating that the deceased was in a medically fit condition for giving the statement. Though such certificate is not mandatory, it was the duty of the officer who recorded the same to mention whether the deceased was in mentally and medically fit condition for making such statement, particularly when the case was of a third-degree burn which could lead to death" 20. Though such certificate is not mandatory, it was the duty of the officer who recorded the same to mention whether the deceased was in mentally and medically fit condition for making such statement, particularly when the case was of a third-degree burn which could lead to death" 20. There is one judicially evolved rule that whenever a dying declaration is found doubtful the Court must look for corroboration. In "P Mani v. State of T.N. " (2006) 3 SCC 161 the Hon'ble Supreme Court has observed that in a case where suspicion can be raised as regards the correctness of the dying declaration the Court before convicting an accused on the basis thereof would look for some corroborative evidence. In the present case, the ocular evidence is so inconsistent and the version of the occurrence given by the witnesses is so discrepant that it is hard to find any corroboration to the dying declaration of Bhola Mahto. The medical evidence can be a corroborative material to lend support to a dying declaration, but cause of death of Bhola Mahto is not proved and it is not known who has inflicted which injury upon Bhola Mahto - PW6 is quite categoric and specific in his cross-examination that Bhola Mahto named only three persons in his statement before the police. 21. A dying declaration is admitted in evidence out of necessity. The implicit faith in truthfulness of the dying declaration - to quote the expression used by the Hon'ble Supreme Court in "Jaishree Anant Khandekar v. State of Maharashtra" (2009) 11 SCC 647 "at the dying moments of one's life", is considered the overwhelming evidence to convict an accused. The judicial pronouncements on the subject would indicate that before a dying declaration is accepted in evidence it must be found that (i) it was voluntary - that is to say not a result of tutoring, prompting or imagination; (ii) coherent and consistent and, (iii) not surrounded by any suspicious circumstance. 22. The judicial pronouncements on the subject would indicate that before a dying declaration is accepted in evidence it must be found that (i) it was voluntary - that is to say not a result of tutoring, prompting or imagination; (ii) coherent and consistent and, (iii) not surrounded by any suspicious circumstance. 22. The statement of Bhola Mahto recorded by Raj Kumar Singh at 8:10 PM on 20.01.2010 reads as under: esjk uke Hkksyk egrks mez djhc 45 o"kZ firk&LoŒ n'kZu egrks] xzke&cM+dk xk¡o ¼xksfoUnMhg½] Fkkuk&cM+dkxk¡o] ftyk gtkjhckx gSA ge vkt jkst cq/kokj fnukad 20-01-2010 dks djhc 20-10 cts jkf= esa MkŒ Jh vkjŒlhŒ Álkn ds fDyfud] gsYFk gkse] cM+dk xk¡o esa vki cM+dk xk¡o Fkkuk ds iqfyl inkf/kdkjh ds le{k xEHkhj t[eh gkyr esa viuk c;ku nsrk gaw fd vkt fnukad 20-01-2010 ds le; djhc rhu cts fnu dks vius VekVj ds [ksr esa nok fNM+d dj ?kj okil ykSV jgk Fkk fd dsM+hx<+k] osyok rjh ds ikl igys ls ¼1½ ;ksxsUæ egrks isŒ&LoŒ dqyq egrks ¼2½ lqnkek egrks firk&;ksxsUæ egrks ¼3½ cq/ku egrks isŒ&iqju egrks ¼4½ iwju egrks firk&LoŒ cjtw egrks ,oa larks"kh nsoh ifr&;ksxsUæ egrks lHkh lkŒ&cM+dk xk¡o] Fkkuk&cM+dk xk¡o ds gjos gfFk;kj ls ySl gksdj [kM+k FksA tks eSa ns[kdj Hkkxus yxs] rc nkSM+k dj eq>s lqnkek egrks idM+ fy;k rFkk tehu ij xkyh&xykSt djrs gq, iVdj fn;k rFkk larks"kh nsoh esjk eaqg nkc fn;k vkSj ;ksxsUæ egrks vius gkFk esa fy;s gq, Vkaxh ls esjs nksuksa iSj dks dkVus yxk rc eSa cpkvks&cpkvks dk gYYkk djus yxs rFkk vius gkFk esa fy, ykBh cq/ku egrks ,oa iqju egrks v/kka&/kqU/k esjs 'kjhj ij ekjus yxs] tks eSa t[eh gkyr esa csgks'k gks x;k] ftls vxy&cxy ds rFkk jfoUæ dqekj egrks] jkds'k dqekj oxSjg mBkdj MkDVj vkjŒlhŒ Álkn ds fDfyfud esa yk, gS tgka esjk bZykt py jgk gSA >xM+k dk dkj.k ;g gS fd igys ls tehu fookn py jgk Fkk rFkk nq'euh Hkh FkkA eq>s iwjk fo'okl gS fd mijksDr lHkh O;fDr feydj tku ls ekjus ds fu;r ls eq>s xEHkhj t[eh fd, gSa rFkk esjs ikWdsV esa ik¡p lkS :i;k Hkh fudky fy, gSaA ;gh gekjk c;ku gSA ge viuk c;ku i<+ ,oa i<+ok dj lqu oks le> fy;kA lgh&lgh fy[kk ikdj nkfguk gkFk esa lqbZ yxus ds dkj.k viuk cka;k vaxwBk dk fu'kku cuk fn;kA English Translation: My name is Bhola Mahto, aged about 45 years, s/o late Darshan Mahto, r/o Village- Barkagaon (Govinddih), Ps.Barkagaon, District-Hazaribagh. Today, on Wednesday, 20.01.2010 at around 20:10 hrs. in the night, I am giving my statement in grievously injured condition at the Clinic of Sri R. C. Prasad, Health Home, Barkagaon before the Police Officer of Barkagaon Police Station that while I was returning home today i.e. 20.01.2010 at around 03:00 PM in the day after sprinkling insecticide in my tomato field (1) Yogendra Mahto, s/o late Kullu Mahto (2) Sudama Mahto, s/o Yogendra Mahto (3) Budhan Mahto, s/o Puran Mahto (4) Puran Mahto, s/o late Barju Mahto and Santoshi Devi, w/o Yogendra Mahto, all r/o Barkagaon, PS.-Barkagaon were already standing near Kedigadha, Belwatari being armed with weapons. Seeing this, I began to flee then Sudama Mahto chased and caught me and abusing me, slammed down on the ground and Santoshi Devi gagged my mouth and Yogendra Mahto began to cut my both legs with an axe in his hand, then I began to scream 'save-save' and Budhan Mahto and Puran Mahto began to assault indiscriminately on my body with Lathi in their hands due to which I became unconscious being injured, then Ravindra Kumar Mahto, Rakesh Kumar and others of nearby places brought me in Clinic of Dr. R. C. Prasad where my treatment is undergoing. The reason behind the quarrel is the existence of previous land dispute and there was enmity as well. It is my firm belief that all the above persons have injured me with an intention to kill and they have also taken out Rs. 500/- from my pocket. This is my statement. I have read and got it read and understood the same. After finding it correctly written, I put my left hand thumb impression as I have been injected on my right hand. 23. In the dying declaration, Bhola Mahto has stated that when he was returning home after sprinkling pesticide in his tomato field he saw Yogendra Mahto, Sudama Mahto, Budhan Mahto, Puran Mahto and Santoshi Devi carrying arms waiting for him. He further says that on seeing them he tried to flee away but could not escape and Sudama Mahto caught hold of him. Bhola Mahto does not say in his fardbeyan that near the canal (nahar) he was apprehended by Khiru Mahto and Rajkeshar Mahto rather from his statement it appears that somewhere around his tomato field he was apprehended and assaulted by the appellants. Bhola Mahto does not say in his fardbeyan that near the canal (nahar) he was apprehended by Khiru Mahto and Rajkeshar Mahto rather from his statement it appears that somewhere around his tomato field he was apprehended and assaulted by the appellants. PW4 says that wife of Bhola Mahto requested him to take her to the tomato field and he dropped her near the Kampura college. He further says he found Bhola Mahto there in injured condition. PW 4 has also stated in the Court that Bhola Mahto was brought to the clinic of Dr. R.C. Prasad by the Principal of the Kampura college. PW3 has claimed that with help of the villagers he had brought Bhola Mahto to the clinic; PW8 has stated that his family members brought his father to the clinic, and the wife says that she brought him to the clinic. The evidences tendered by these witnesses are in contradiction to the statement of Bhola Mahto in his fardbeyan - in his fardbeyan Bhola Mahto has stated that Ravindra Kumar Mahto and Rakesh Kumar etc. brought him to the clinic of Dr. R.C. Prasad. We further find that the truthfulness of the statement of Bhola Mahto recorded by Raj Kumar Singh on the basis of which the First Information Report was lodged is seriously dented by the statement of PW6 who has stated in the cross-examination that in his statement before the police Bhola Mahto had disclosed complicity of only three persons, namely, Yogendra Mahto, Sudama Mahto and Santoshi Devi. 24. In the aforesaid state of affairs, we find that dying declaration of Bhola Mahto was recorded under suspicious circumstances, there is no definite and clinching material except the contradictory statements of prosecution witnesses that Bhola Mahto was conscious and in a fit state to speak; the prosecution has failed to prove the place of occurrence and involvement of the appellants in making murderous assault on Bhola Mahto. From the prosecution evidence, we gather that the prosecution witnesses who are closely and intimately related to Bhola Mahto had arrived in the clinic of Dr. R.C. Prasad on hearing hulla. From the prosecution evidence, we gather that the prosecution witnesses who are closely and intimately related to Bhola Mahto had arrived in the clinic of Dr. R.C. Prasad on hearing hulla. They had sufficient time to deliberate amongst themselves and out of suspicion primarily because there was a land dispute between the parties and Santoshi Devi lodged a First Information Report against the accused, at their instance Raj Kumar Singh has suspiciously entered the scene and recorded the so-called dying declaration of Bhola Mahto. The dying declaration of Bhola Mahto which is surrounded by Suspicious circumstances is so full of contradictions and inconsistent with ocular evidence - and, without corroboration; that it would be highly dangerous and against all canons of law to admit it in evidence to record conviction of the appellants for committing murder of Bhola Mahto. 25. We are surprised that the learned trial Judge has written about twenty one pages and referred to several judgments of Hon'ble Apex Court, but he has not returned a finding whether dying declaration of Bhola Mahto is free from suspicion and inspires confidence - the learned trial Judge has ignored the statutory mandate under section 353 read with section 354 of the Code of Criminal Procedure. On duty of the trial Judge, we intend to refer to a judgment in "State of Punjab v. Jagir Singh" (1974) 3 SCC 277 wherein the Hon'ble Supreme Court has observed as under: "23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. " 26. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. " 26. To conclude, we hold that the prosecution has failed to establish complicity of the appellants by producing cogent and consistent materials. Therefore, conviction of the appellants in Sessions Trial Case No. 303 of 2010 for committing murder of Bhola Mahto in furtherance of common objection of the unlawful assembly is held unsustainable and accordingly set-aside. 27. The judgment of conviction under sections 147, 148, 302 read with section 149 of the Indian Penal Code dated 06.04.2015 and the order of sentence dated 08.04.2015 against the appellants, namely, Yogendra Mahto in Cr. Appeal (DB) No. 365 of 2015, Sudama Mahto in Cr. Appeal (DB) No. 349 of 2015, Santoshi Devi in Cr. Appeal (DB) No. 350 of 2015, and Budhan Mahto and Puran Mahto in Cr. Appeal (DB) No. 366 of 2015 passed by the learned Additional Sessions Judge-X, Hazaribagh in Sessions Trial Case No. 303 of 2010 are set-aside. 28. Mrs. Nehala Sharmin, the learned APP states that the appellant, namely, Yogendra Mahto in Cr. Appeal (DB) No. 365 of 2015 who has served the sentence for more than thirteen years, with remission, is in custody while the appellants, namely, Sudama Mahto, Santoshi Devi, Budhan Mahto and Puran Mahto are on bail. 29. Accordingly, it is ordered that Yogendra Mahto who is the appellant in Cr. Appeal (DB) No. 365 of 2015 shall be set free forthwith if not wanted in connection to any other case. 30. The appellants, namely, Sudama Mahto in Cr. Appeal (DB) No. 349 of 2015, Santoshi Devi in Cr. Appeal (DB) No. 350 of 2015, Budhan Mahto and Puran Mahto in Cr. Appeal (DB) No.366 of 2015 who are on bail are discharged of liability of the bail bonds furnished by them. 31. In the result, Cr. Appeal (DB) No. 365 of 2015, Cr. Appeal (DB) No. 349 of 2015, Cr. Appeal (DB) No.350 of 2015 and Cr. Appeal (DB) No. 366 of 2015 are allowed. 32. Let lower Court records be transmitted to the Court concerned, forthwith. 33. 31. In the result, Cr. Appeal (DB) No. 365 of 2015, Cr. Appeal (DB) No. 349 of 2015, Cr. Appeal (DB) No.350 of 2015 and Cr. Appeal (DB) No. 366 of 2015 are allowed. 32. Let lower Court records be transmitted to the Court concerned, forthwith. 33. Let a copy of the Judgment be transmitted to the Court concerned through 'FAX'.