Judgment :- 1. In this case the State has filed an appeal against an order of acquittal passed by the Additional Sessions Judge of Alleppey and this court has also issued notice to the accused on Calendar Revision to show cause why the acquittal should not be set aside. We are at present concerned only with the case against the 1st accused. He was charged in the Sessions Court with the offence of murder punishable under S.302 IPC for having caused the death of one Ouseph Chacko of Madhavapilli purayidom in a compound known as Manakka Parambu, Kallarakkara, Thalayazham Pakuthy, Vaikom Taluk. His father, who was the 2nd accused, was charged along with him for abetment of the murder. The learned Additional Sessions Judge acquitted both of them. Hence the appeal by the State. 2. Manakka Parambu of Purayidom is a big compound which lies slopping from south to north. On account of its slopping nature the compound has been terraced, and at the time of the occurrence some of the upper terraces were under tapioca cultivation. The tapioca was planted by lessees, one of whom was P.W. 7, father of P.W. 6. The plot to the north of the plot planted by Pw. 7 was in the possession of one Kuruvilla, and that plot was also under tapioca cultivation at the time of the occurrence. To the north of, that is to say, below, Kuruvilla's plot there was a low stone-bund running right across the property from east to west and the land below the bund was lying vacant without any cultivation. Through that vacant land there was a trace, or foot-path, coming from east to west and joining a lane on the western side of Manakka Purayidom. In Ext. N sketch the trace, or foot-path, running through the vacant land from east to west is shown by a dotted line, and the lane to the west of Manakka Purayidom is shown as a foot-path lying between Manakka Purayidom and Kottuparambu Purayidom. The trace running through Manakka Purayidom from east to west crosses the lane or foot-path mentioned above and continues westwards through Kottuparambu. In Kottuparambu there is a house a little to the south-west of the point where the trace enters that compound after crossing the lane. P.W. 4 lives in that house. The trace running through Manakka Purayidom from east to west crosses the lane or foot-path mentioned above and continues westwards through Kottuparambu. In Kottuparambu there is a house a little to the south-west of the point where the trace enters that compound after crossing the lane. P.W. 4 lives in that house. The scene of occurrence in this case is said to be a spot on the trace running through the vacant land in Manakka Purayidom about 52 feet to the west of the house of P.W.4. Point D in Ext. N plan is the spot where the occurrence is said to have taken place, and point A is the house of P.W. 4. P.W. 7 and his daughter, P.W. 6, live in the house shown as, point C in Ext. N plan, about 390 feet to the north-east of point D. 3. The prosecution case in the Sessions Court was that while the deceased Chacko was returning home from his shop at about 7.30 P.M. on 17.10.1951, the 2nd accused struck down the torch which Chacko had in his hands and the 1st accused stabbed him with a pen-knife on the abdomen and right arm and that Chacko died at about 1-15 A.M. that night in the Vaikom Government Hospital as a result of the injuries inflicted by the 1st accused. According to the prosecution, there was previous enmity between the 1st accused and Chacko on account of the latter having taken some part in an arbitration concerning the theft of a buffalo committed by the 1st accused and one of his friends a few days before the occurrence. As a result of that arbitration the 1st accused had to pay about Rs. 200/- to the owner of the buffalo and at the close of the arbitration Chacko had also suggested that the 1st accused should be handed over to the Police. It is alleged that on the date of the occurrence Chacko had gone from his shop to the house of one of his sons and that at the time of the occurrence he was returning home in the company of one of his relatives, Pw. 5, carrying a lighted cadjan torch. They are said to have come from the north, southwards through Manakka Purayidom, and after crossing the stone-bund and striking the trace to have turned westwards and proceeded westwards along the trace. Pws. 5, carrying a lighted cadjan torch. They are said to have come from the north, southwards through Manakka Purayidom, and after crossing the stone-bund and striking the trace to have turned westwards and proceeded westwards along the trace. Pws. 6 and 7 claim that when Chacko and Pw. 5 were coming southwards they themselves were standing in the court-yard of their house and that suspecting that poachers were in the tapioca cultivation on the northern side of the stone bund they came to their plantation and saw from there the 1st accused stabbing Chacko. Pw. 4 claims that immediately after the occurrence he heard Chacko crying out to him that the 1st accused had stabbed him and that on hearing this cry he ran to point D. According to Pw. 4, he came upon the injured Chacko a little to the west of point D, and at that spot Pw. 6 also joined him. While they were bandaging Chacko's injuries other persons also came to the spot. Chacko was subsequently removed from there to the hospital where he died after making two statements, one to the Police, which is Ext. B, and the other, which is Ext. E(1), to the Taluk Second Class Magistrate, Vaikom. The accused's plea was one of total denial. They contended that they had nothing to do with the occurrence and had been falsely implicated. Besides Pws. 5, 6 and 7 mentioned above the prosecution examined Pws. 10 and 14 also as eye-witnesses. The learned Sessions judge acquitted the accused holding that the evidence of Pws. 5, 6, 7,10 and 14 was unreliable and that Ext. E(1) could not be legally acted upon as it was not recorded by a Magistrate who was empowered to record statements under S. 164 of the Code of Criminal Procedure. 4. Although Pw. 4 is not an eye-witness in the sense that term is usually understood, he has given important evidence regarding the occurrence and the identity of the assailant who stabbed the deceased Chacko, and his evidence, if true and reliable, would go a long way in establishing the prosecution case against the 1st accused. That the learned judge himself considered Pw. 4 to be a true and reliable witness is evident from the discussion of his evidence contained in paragraph 19 of the judgment of the court below. Paragraph 19 reads: "It is admitted that Pw. That the learned judge himself considered Pw. 4 to be a true and reliable witness is evident from the discussion of his evidence contained in paragraph 19 of the judgment of the court below. Paragraph 19 reads: "It is admitted that Pw. 4 who is the nearest neighbour to the place of the incident came to the spot on hearing the cries of the deceased and that he had a lantern with him. He swears that it was he who came to the spot first and that when he came to the spot there was nobody near the deceased and that it was Pw. 6 who came there next to him. He does not swear that Pw. 5 was with the deceased or that he saw him anywhere there. Further he has sworn that he saw only one person running away from the spot eastward and that he saw only the back side of that person. He has definitely stated that he had not seen either Pw. 10 or Pw. 14 anywhere there. Nothing has come out in his examination that he is giving an incorrect version of the incident or that he is unreliable. Basing on this the learned counsel for the accused argues that the depositions of Pws. 5,10 and 14 that they were at the spot at the time of the incident and that they say it are false". It is unfortunate that in the above discussion of the evidence of Pw. 4, the learned judge has omitted to advert to certain very important facts testified to by him. As pointed out by the Sessions Judge, Pw. 4 is the nearest neighbour to the scene of occurrence. According to Pw. 4, while he was bathing in the court-yard of his house he heard the deceased Chacko crying out that the accused had stabbed him and he immediately ran to the spot with a hurricane lantern in his hand. He says that Chacko called him and cried out that the 1st accused had stabbed him, that as he ran up to the spot he saw Chacko coming westwards with faltering steps and covering or supporting his abdomen with his hand, and that he (Pw. 4) also saw then a person, who, he thought, was the 1st accused, running away eastwards from the spot. Almost immediately after Pw. 4 reached the deceased Chacko, Pw. 4) also saw then a person, who, he thought, was the 1st accused, running away eastwards from the spot. Almost immediately after Pw. 4 reached the deceased Chacko, Pw. 6 also joined them and then Pws. 4 and 6 bandaged the bleeding injury on Chacko's abdomen. In the discussion of Pw. 4's evidence, the learned judge has not noticed his statements that he heard the deceased Chacko crying out from the scene of occurrence, that the 1st accused had stabbed him and that on running up to the spot when he heard Chacko's cry he saw a person, who, he thought, was the 1st accused, running away eastwards from there. If these statements are true there can be little doubt of the 1st accused's guilt. According to the Sessions judge, both sides admitted that Pw. 4 was the nearest neighbour and came to the spot on hearing the cries of the deceased with a lantern and nothing has come out in his examination to show that he is giving an incorrect version of the incident or that he is unreliable. We have very carefully gone through his deposition, and to us also, as to the learned Judge, Pw. 4 appears to be a truthful and reliable witness. If only the Sessions Judge had adverted to the two important facts spoken to by Pw. 4 his conclusions would have been far different from those now reached by him. It was contended by the appellant's counsel that the evidence of Pw. 4 would show that he was not sure of the identity of the person who was running away eastwards, and that as the occurrence took place in a dark night, no reliance should be placed on his evidence that the person who ran away eastwards appeared to him to be the 1st accused. No doubt the occurrence took place at night, but the time was only 7.30 P.M., and Pw. 4 had a hurricane lantern in his hand when he went to the scene of occurrence. His statement that the person who ran away eastwards from the scene of occurrence appeared to him to be the 1st accused does not stand alone There is also the earlier statement in his deposition that while he was bathing in the court-yard, he heard the deceased Chacko calling to him and crying out that the 1st accused had stabbed him. His evidence reads: We have no hesitation in believing Pw. 4's evidence extracted above especially in the light of the opinion that both we and the Sessions Judge have formed about his credibility. Regard being had to the facts that Chacko himself had called him from the scene of occurrence and cried out that the 1st accused had stabbed him, and that when he came to the spot on hearing Chacko's cry with a lantern in his hand, he saw a person who appeared to be the 1st accused, running away from there, we think it not unlikely that in Pw. 4's situation many honest witnesses would have readily said that the person who ran away from the scene of occurrence was the 1st accused. It is because he is an absolutely truthful and honest witness and a careful person that instead of speaking with such certainty Pw. 4 has only said that the man who ran away from the scene of occurrence appeared to him to be the 1st accused. The learned Sessions Judge has totally overlooked the very important evidence which such an honest and reliable witness had to give regarding the occurrence and the identity of the assailant. The statement made by the deceased Chacko when he called Pw. 4 at the very time of occurrence that the first accused had stabbed him is an important piece of evidence, and it has not been considered at all by the learned judge. 5. The evidence of Pw. 6 also has been discarded by the Sessions Judge on account of a pure misreading of her evidence. According to Pw. 6, just before the occurrence she and her father, Pw. 7, happened to be out in the court-yard of their house. Pw. 7 was about to bathe and Pw. 6 was drawing water for him from the well. They then saw two persons coming from the south, and suspecting them to be poachers out for stealing tapioca, Pws. 6 and 7 went from their house to their plantation. By the time they reached their plantation the two persons crossed the stone bund and turned westwards along the trace; and while Pws. 6 and 7 were standing in their tapioca plantation, both of them saw the 2nd accused striking down the cadjan torch from Chacko's hands and the 1st accused stabbing him on the abdomen. Pw. By the time they reached their plantation the two persons crossed the stone bund and turned westwards along the trace; and while Pws. 6 and 7 were standing in their tapioca plantation, both of them saw the 2nd accused striking down the cadjan torch from Chacko's hands and the 1st accused stabbing him on the abdomen. Pw. 6 says that she heard Chacko crying out, that the 1st accused had stabbed him and that his intestines had fallen out. According to her, on hearing Chacko's cry Pw. 4 came to the spot with a lantern, and then she also went up to them, and she and Pw. 4 together bandaged the wound on Chacko's abdomen. This evidence of hers has been summarised by the Sessions Judge in paragraph 9 of his judgment and discussed in paragraph 21. Paragraph 9 reads: "Pw. 6 is another eye-witnesses. She has sworn that while she and her father Pw. 7 were about to have their bath on the western side of her house she saw two persons going towards the west and thinking that they were going to steal the tapioca they have planted in the Manakkal Parambu which is west to her compound she along with her father went to the western purayidom and remained there amidst tapioca. While so they saw the deceased going westward with a lighted torch and then 2nd accused seized the torch and threw it down while 1st accused gave two stabs one on his abdomen and the other on his right hand. Receiving the stab the deceased cried aloud and he was stabbed by 1st accused and that his intestines have come out. Then Pw. 4 rushed to the spot with a lantern and she also ran towards the injured and they rendered first aid by dressing the wound. When other neighbours also came the injured was taken in a Vallom to the Vaikom Hospital. She has sworn that the fallen torch was till burning on the ground and in that light she could see that it was 1st accused who stabbed the deceased". And paragraph 21 reads: "Pw. 6 has sworn that she along with her father Pw. 7 was standing in the property where they had planted tapioca and that property is immediately south to the property where the incident took place. But what Pw. And paragraph 21 reads: "Pw. 6 has sworn that she along with her father Pw. 7 was standing in the property where they had planted tapioca and that property is immediately south to the property where the incident took place. But what Pw. 7 has sworn to is that the property they were standing in was not the property immediately south to the property where the incident took place but was the one lying further south to it. The accused's counsel submits that the property where Pws. 6 and 7 had planted tapioca is at some distance away from the spot and that if they were standing there it was not possible for them to witness the incident and identify the persons". The learned judge was clearly misreading the evidence of Pw. 6 in saying in paragraph 21 of his judgment: "Pw. 6 has sworn that she along with her father Pw. 7 was standing in the property where they had planted tapioca and that property is immediately south to the property where the incident took place". No doubt she has said in her evidence that she and Pw. 7 were standing at the time of the occurrence in the plot wherein they had planted tapioca, but she has not stated that that plot was immediately south of the property where the incident took place. The incident took place in that part of Manakka Purayidom which lies below the stone-bund. According to Pw. 6, immediately to the south of the plot where the occurrence took place there is a stone-bund which runs east to west, the plot to the south of that bund is being cultivated by one Kuruvilla, and the plot to the south of Kuruvilla's plot is the plot wherein Pw. 7 had planted tapioca. Pw. 6 has deposed specifically that it was in the plot to the south of Kuruvilla's plot that Pw. 7 had planted tapioca and that it was from the plot in which Pw. 7 had planted tapioca, that she and Pw. 7 saw the occurrence. She has not stated that the property in which they were standing and from which they saw the occurrence was immediately to the south of the plot wherein the incident took place. According to her, Kuruvilla's plot intervenes between the plot wherein the occurrence took place and the plot from which she and Pw. 7 saw the occurrence. She has not stated that the property in which they were standing and from which they saw the occurrence was immediately to the south of the plot wherein the incident took place. According to her, Kuruvilla's plot intervenes between the plot wherein the occurrence took place and the plot from which she and Pw. 7 saw the occurrence. Her evidence reads: In the face of these statements it was absolutely incorrect to say "Pw. 6 has sworn that she along with her father was standing in the property where they had planted tapioca and that property is immediately south to the property where the incident took place". It was solely because of this misreading of her evidence that the learned judge discarded the evidence of Pw. 6 in paragraph 20 of his judgment. If he had read her evidence correctly the Sessions Judge would not have discarded her evidence on this ground. The evidence of Pw. 6 is in absolute conformity with that of Pw. 4, and after carefully going through her evidence, we see no ground for discarding it. Like Pw. 4, Pw. 6 also appears to us to be a true and reliable witness. Pws. 6 and 7 have practically given the same evidence. On account of a rheumatic touch in his legs Pw. 7 was not able to reach Chacko as quickly as Pw. 6 after the accused stabbed him. It was only while Pws. 4 and 6 were bandaging Chacko's wounds that Pw. 7 reached the spot. Considering the facts sworn to by Pws. 6 and 7, the evidence of Pw. 7 also appears to be true and probable. As has been pointed out already in connection with the evidence of Pw. 6, it was on account of a misreading of the evidence of Pw. 6, the learned Sessions Judge thought that there was discrepancy in the evidence of Pws. 6 and 7. In the circumstances, we accept the evidence of Pw. 6 also. 6. So far as the evidence of Pws. 5,10 and 14 is concerned, the appreciation of their evidence by the Sessions Judge cannot be said to be perverse or entirely unjustifiable. It is true that Pws. 6 and 7 say that they saw two persons coming from the south through Manakka Purayidom, and therefore it is highly probable that Pw. 5 also was coming with Chacko at the time of the occurrence. It is true that Pws. 6 and 7 say that they saw two persons coming from the south through Manakka Purayidom, and therefore it is highly probable that Pw. 5 also was coming with Chacko at the time of the occurrence. But Chacko was not seen at the spot when Pws. 6 and 4 ran up to the place after the occurrence. They do not say that they found him there, and admittedly he was not one of the persons who took Chacko to the hospital. He has also not attested the mahazar drawn up by the Police regarding Chacko's injuries. From these circumstances it is but legitimate to infer that Pw. 5 might have taken to his heels when the assailant or assailants began the attack on Chacko and struck down his torch and that he has not actually seen the 1st accused stabbing Chacko. The discrepancies in their evidence pointed out by the learned judge in paragraphs 22 and 23 of his judgment are sufficient to discredit Pws. 10 and 14 and to make one suspect that they also might not have seen the occurrence. 7. But the learned Sessions Judge's appreciation of the evidence of Pws. 4, 6 and 7 cannot be accepted. His appreciation of their evidence cannot but be characterised as perverse. He has omitted to consider important aspects in Pw. 4's evidence and discarded the evidence of Pws. 6 and 7 on account of a gross-misreading of the evidence of Pw. 6. According to the learned judge himself, Pw. 4 is a reliable witness. There is therefore every reason to think that but for his unfortunate omission to consider Pw. 4's statements that from the scene of occurrence itself and at the very time of its happening Chacko had called to him and cried out that the 1st accused had stabbed him and that as he ran up to the scene of occurrence on hearing Chacko's cry he saw a person who appeared to him to be the first accused running away from there, the judge's conclusions would have been altogether different. It will be convenient to consider at this stage, two or three minor circumstances mentioned by the learned judge in his judgment and referred to by the appellant's counsel during the course of her arguments in this Court. It will be convenient to consider at this stage, two or three minor circumstances mentioned by the learned judge in his judgment and referred to by the appellant's counsel during the course of her arguments in this Court. One of them is the omission of the Prosecution to produce the remanants of the cadjan torch which is alleged to have been struck down from Chacko's hand before the 1st accused stabbed him. It was contended that, if the deceased Chacko was carrying a torch as he was going along the trace, the investigating officer would have found either the remanants of the torch or at least the ashes from it at the scene of occurrence. The occurrence took place at 7.30 P.M. on 17.10.1951 and Pw. 17, the investigating officer, came to the scene of occurrence and prepared the scene mahazar, Ext. H, at 5 P.M. on the next day. Pw. 17's evidence as well as the mahazar show that there was rain after the occurrence. It is therefore highly probable that the remanants of the burnt torch and the ashes were washed away by rain water as spoken to by Pw. 17. The compound itself was a sloping ground. The omission to produce the remanants of the burnt torch and the ashes is not, therefore, a sufficient circumstance for discrediting the evidence of Pws. 4, 6 and 7. Exts. C and G are the wound certificate and post-mortem certificate issued by the Deputy Surgeon-in-charge of the Government Hospital, Vaikom, regarding the injuries found on Chacko's body. From them it is seen that Chacko had sustained two injuries; one an oblique, incised, penetrating wound 61/2" x 11/2" starting from a point midway between the umbilicus and left nipple and going to the right and slightly upwards; and the other, an incised wound 11/2" x 3/4" in the inner and lower third of the right arm and going obliquely outwards and across in front of the arm in a level with the injury on the abdomen. Pw. 6 has said in one part of her chief examination that the first accused stabbed Chacko twice, first on the abdomen, and then, on the right arm. Similar evidence has been given by Pw. 7 also. Pw. 8 is the Medical Officer who has issued the two certificates, Exts. C and G. In his evidence Pw. Pw. 6 has said in one part of her chief examination that the first accused stabbed Chacko twice, first on the abdomen, and then, on the right arm. Similar evidence has been given by Pw. 7 also. Pw. 8 is the Medical Officer who has issued the two certificates, Exts. C and G. In his evidence Pw. 8 said that the two injuries sustained by Chacko on the abdomen and on the right arm were probably caused by one and the same stab. It was contended in the lower court as well as in this Court that this medical evidence contradicts the evidence of Pws. 6 and 7 that the 1st accused had stabbed Chacko twice. This contention has also been accepted in a way by the Sessions Judge. In paragraph 26 of his judgment the learned judge says: "All the eye-witnesses have sworn that they saw 1st accused inflicting two distinct stabs on the deceased. But the Medical Officer as Pw. 8 has sworn that the wound on the arm was in all probability only a continuation of the stab on the abdomen and so one stab alone would have been inflicted on the deceased. So in the face of the conflicting and contradictory statements of the witnesses I do not think that any of them would have seen the incident as it actually took place". It may be said at one that the eye-witnesses have not given conflicting and contradictory statements as to the number of times the 1st accused had stabbed Chacko. According to all of them, the 1st accused stabbed Chacko, first on the abdomen and then on the right arm. Both Pws. 6 and 7 have stated distinctly during their chief examination that the 1st accused stabbed the deceased Chacko a second time on the right arm also. The medical evidence does not at all rule out the possibility of such a second stab. All that the Doctor has said is that in his opinion the two injuries were probably caused by the same stab. He has also added that it cannot be said that they could not be inflicted by two distinct stabs. According to him, they were probably caused by the same stab but that they might also be caused by two distinct stabs. The evidence of Pws. He has also added that it cannot be said that they could not be inflicted by two distinct stabs. According to him, they were probably caused by the same stab but that they might also be caused by two distinct stabs. The evidence of Pws. 6 and 7 as to the number of times the 1st accused stabbed Chacko cannot, therefore, be said to be so inconsistent with the medical evidence as the appellant's counsel contends. Some reference was also made by the appellant's counsel to the fact that the Chemical Examiner was not able to detect any blood on the pen-knife, which, according to the prosecution, was produced by the accused himself in the Police Station. The mahazar prepared at the time of the recovery of the pen-knife shows that there were then some stains on the blade which the police thought were due to blood. They were very probably wrong in thinking that the stains were due to blood. Considering the interval between the time of occurrence and the recovery of the pen-knife it is not unlikely that the accused might have washed or wiped away the blood before its production at the Police Station. Therefore, the inability of the Chemical Examiner to find traces of blood on the pen-knife recovered from the accused is also not a circumstance affecting the truth of the charge against the 1st accused. 8. Besides the evidence of the witnesses mentioned above the prosecution also relied upon Ext. E(1) as a dying declaration made by the deceased Chacko. After he was removed to the Hospital, Chacko made two statements. One of them is Ext. B which is the First Information Statement recorded from him by the investigating officer, Pw.17, at 11 P.M. on 17.10.1951, and the other is Ext. E(1) recorded from him at 12.10 in the same night by Pw.13, the Taluk Second Class Magistrate of Vaikom under S.164 of the Code of Criminal Procedure. The prosecution relied upon Ext. E(1) as a dying declaration admissible in evidence under S.32(1) of the Evidence Act. The Sessions Judge discarded Ext. E(1) on the grounds that it was recorded by a Magistrate who was not empowered to record statements under S. 164 of the Code of Criminal Procedure, and that there were discrepancies between the statements in it and Ext. B. For discarding Ext. The Sessions Judge discarded Ext. E(1) on the grounds that it was recorded by a Magistrate who was not empowered to record statements under S. 164 of the Code of Criminal Procedure, and that there were discrepancies between the statements in it and Ext. B. For discarding Ext. I on the ground that it was recorded by a Magistrate who was not empowered to record statements under S. 164, the learned judge has relied upon the Privy Council decision in Nazir Ahamed v. King Emperor (A.I.R. 1936 P.C. 253(2)). The statement excluded from consideration in Nazir Ahamed v. King Emperor, was a confession recorded from the accused during the course of the investigation by a Magistrate who was not specially empowered to take statements under S. 164. The statement was sought to be made use of in that case as a confession; and since before recording the confession the Magistrate had to warn the accused and also to be satisfied that the confession he was going to make would be made voluntarily, it was held in that case that the statement recorded by a Magistrate not empowered to make statements under S. 164 of the Code of Criminal Procedure could not be accepted and acted upon. In the present case, Ext. E(1) is sought to be made use of not as a statement under S.164 of the Code of Criminal Procedure, but purely as a dying declaration coming under S.32(1) of the Evidence Act. No particular procedure has been prescribed by any provision of law for recording such a declaration, and it is also not necessary to give any warning before a dying declaration is recorded. Even a layman is competent to record a dying declaration and prove the same in the usual manner like other facts and documents. When a Magistrate not specially empowered to record statements under S. 164 of the Code of Criminal Procedure takes down a statement which subsequently turns out to be a dying declaration, there is nothing in law to prohibit the Magistrate from proving in the ordinary manner the statement made to him by the deceased person. In this case, after recording the statement made to him by the deceased Chacko, Pw.13 read over the statement to him and Chacko admitted it to be correct and also signed the same. In this case, after recording the statement made to him by the deceased Chacko, Pw.13 read over the statement to him and Chacko admitted it to be correct and also signed the same. The Magistrate has proved both Chacko's statement and the fact that the statement made by Chacko has been correctly recorded by him in Ext. E(1). We therefore consider that Ext. E(1) is admissible in evidence and can be taken due note of as a dying declaration under S.32(1) of the Evidence Act. Our view is also fortified by the opinion expressed by a Bench of the Lahore High Court in Muhammed Sarfraz Khan v. Crown (52 Crl. L.J. 1425). In that case it has been said: "The case before the Privy Council was one of an improperly recorded confession. Now the law itself provides that when a confession has to be recorded by a Magistrate in the course of police investigation, the Magistrate, before he proceeds to record the confession, must warn the prisoner that he is not under any obligation to make a confession and that the confession, if made, may be used as evidence against him, and it is only after he has given this warning that he can proceed to record the confession, and that too if after questioning the prisoner he is satisfied that the confession he is going to make would be made voluntarily. The classes of Magistrates who are competent to record confessions are specified and the lowest class declared competent for the purpose is class 2nd if specially empowered for the purposes. No such procedure, however, has been prescribed by law where the statement to be recorded is not a confession but a statement of a witness. It is true that under S. 164, Criminal Procedure Code the only Magistrate who is competent to record the statement of a witness is a 1st Class Magistrate or a specially empowered 2nd Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. It is true that under S. 164, Criminal Procedure Code the only Magistrate who is competent to record the statement of a witness is a 1st Class Magistrate or a specially empowered 2nd Class Magistrate and that the statement has to be taken down in the manner prescribed by the Code of Criminal Procedure. But a Magistrate recording a statement under that section is not required to give any such warning as is necessary in the case of a confession, and it is this difference in the recording of the confession of an accused and the statement of a witness that courts subsequently to the Privy Council decision in Nazir Ahamad's case (17 Lah. 629) have held that even where the statement of a dying man is recorded by an incompetent Magistrate in the course of police investigation the case is not governed by the principle of that authority, and that the statements of deceased persons though recorded by incompetent Magistrates are admissible as dying declarations". In our opinion the learned Sessions Judge has committed a mistake of law in excluding Ext. E(1) from consideration as that statement has been properly proved by the Magistrate who recorded it. It should have been taken into consideration as a dying declaration under S.32(1) of the Evidence Act, even though the Magistrate who recorded it, was not empowered to record a statement under S. 164 of the Code of Criminal Procedure. 9. The version in Ext. E(1) is exactly similar to the version given by Pws. 6 and 7. According to that statement, when Chacko was coming along the trace with a lighted cadjan torch in his hands, the 2nd accused struck down the torch from his hands and the 1st accused stabbed him with a pen-knife on the abdomen and on the right arm. Chacko had not referred in Ext. E to the 2nd accused or the act attributed to him in Ext. E(1). Nor had he stated in Ext. B that he has cadjan torch in his hands as he was coming along the trace. The Sessions Judge considered these omissions to be material discrepancies between the two statements. Ext. B was recorded just after Chacko was removed to the hospital. He must have been in intense pain at that time, and Pw.17 has only taken down a very short statement from him in Ext. The Sessions Judge considered these omissions to be material discrepancies between the two statements. Ext. B was recorded just after Chacko was removed to the hospital. He must have been in intense pain at that time, and Pw.17 has only taken down a very short statement from him in Ext. B. The endeavour at that time was to get the cardinal facts from him and not to ascertain all the details. The fact that Chacko had a cadjan torch in his hands and that the 2nd accused struck it down from his hands before the first accused stabbed him are only matters of detail. The most important facts to be ascertained from the dying man at that time was the identity of the person who stabbed him and how the injuries were caused. As regards the main facts there is no difference at all between Exts. B and E(1). So long as the two statements agree in regard to the main facts and do not contradict each other, the mere omission to refer to all or some of the details in one of them cannot be said to be a discrepancy. Considering the evidence given by Pws. 4, 6 and 7 we would accept Ext. E(1) also as reliable evidence against the first accused. 10. Lastly it was contended that there are some discrepancies in the evidence of Pws. 19 and 20 who speak to the prosecution case regarding motive. The learned judge says that their depositions are conflicting as regards the place of arbitration and the person to whom the price of the stolen buffalo was paid. From the evidence of Pws. 19 and 20 it is seen that what has been termed as arbitration was only a sort of negotiation or mediation during the course of which the mediators and parties moved from place to place. There is not, therefore, much substance in the contention that the statements of Pws. 19 and 20 do not agree as regards the actual place of arbitration. The question of motive is not very material in a case in which there is good and convincing evidence as regards the actual occurrence itself. 11. We are convinced that the evidence of Pws. 4, 6 and 7 is true and absolutely reliable. 19 and 20 do not agree as regards the actual place of arbitration. The question of motive is not very material in a case in which there is good and convincing evidence as regards the actual occurrence itself. 11. We are convinced that the evidence of Pws. 4, 6 and 7 is true and absolutely reliable. Their evidence proves beyond the shadow of a doubt that the 1st accused stabbed the deceased Chacko at the scene of occurrence with a pen-knife and inflicted the injuries on his abdomen and right arm described in Exts. C and G. We hold that Ext. E(1) also is admissible in evidence under S.32(1) of the Evidence Act as a dying declaration made by the deceased Chacko. That statement also proves that it was the first accused who stabbed Chacko and inflicted the injuries found on his body at the time of his admission to the hospital and described in Exts. C and G. Pws. 6 and 7 as well as Pws.1 and 2 speak to the fact of Chacko's removal from Manakka Purayidom to the Vaikom Hospital after the occurrence. Pws.1 and 2 are Chacko's sons. They and the Medical Officer have testified to his death in the hospital the very same night. The injuries found on Chacko's body at the time of his admission to the hospital have been described by Pw. 8 in Ext. C and in the evidence he gave in the Sessions Court. The nature of those injuries has already been referred to in paragraph 7 above. According to Pw. 8, the cause of Chacko's death was shock and haemorrhage resulting from the injuries described in Exts. C and G. The nature of the injuries inflicted and the weapon used, and the manner of the attack at right, all indicate that the first accused stabbed Chacko with the intention of causing his death. There is no case that he had received any grave and sudden provocation from Chacko. In the circumstances we hold that the Prosecution has made out the charge of murder under S. 302 IPC, against the 1st accused. Accordingly, we allow the appeal filed by the State so far as he is concerned, and set aside his acquittal by the Additional Sessions Judge. In the circumstances we hold that the Prosecution has made out the charge of murder under S. 302 IPC, against the 1st accused. Accordingly, we allow the appeal filed by the State so far as he is concerned, and set aside his acquittal by the Additional Sessions Judge. We find the first accused guilty of the offence of murder and convict him under S. 302 IPC, and sentence him to transportation for life. Ordered accordingly in the proceedings taken on calendar revision also. Allowed.