JUDGMENT H.C.P. Tripathi, J. - These two appeals arise out of a common judgment of the learned Sessions Judge, Bareilly, and they are being disposed of together. 2. The three appellants have been convicted of an offence under section 302 read with section 34 I. P. G. by the learned Sessions Judge and each of them has been sentenced to life imprisonment. The prosecution case in brief is as follows: Appellants Ramesh and Madan Lal and Mahboob Ali deceased resided in Mohalla Bhoor of the city of Bareilly. Appellant Manik Chandra is a resident of a neighbouring Mohalla. The three appellants who are young men are friends and were known to the deceased. A few days before the occurrence the deceased had borrowed from appellant Ramesh one rupee for making payment to a hawker which he had refused to return on demand and this had resulted in an exchange of hot words between them. On the night of 3rd June, 1964, at about 9 p.m. the three appellants came on two cycles to the house of the deceased. It was a dark night but an electric street light at a distance of 20 paces from his house was on and an electric bulb was also emanating light from a neighbouring chabutra. The three appellants shouted at the door of the deceased asking him to come out of the house. Mahboob Ali, in response to the shouts, came out and stood in front of his door. Appellant Ramesh again demanded for the return of his loan. Mahboob Ali expressed his inability to pay the amount. Appellants Manik Chandra and Mohan Lal then cried out that the deceased considers him very big and he should be set right. Manik Chandra caught hold of him by the waist and Madan Lal caught the left hand of the deceased and when he was in this helpless position appellant Ramesh stabbed him on his chest with a knife. Mahboob Ali cried out that he had been stabbed by Ramesh and ran towards his uncle's house. The neighbour's being attracted by the cries of the victim came to his rescue but the appellants had run away. Mahboob Ali was immediately carried on a rickshaw by his brother Sharafat (P.W. 1) to the district hospital where he was medically examined by Dr. The neighbour's being attracted by the cries of the victim came to his rescue but the appellants had run away. Mahboob Ali was immediately carried on a rickshaw by his brother Sharafat (P.W. 1) to the district hospital where he was medically examined by Dr. Jaswant Singh at 9.50 p. m. who found two stab wounds and one abrasion all of fresh duration on his person having been caused by some sharp pointed weapon. 3. Sharafat got a report of the occurrence scribed by Shamim in the hospital at 10-30 p,m. and handed it over at police station Kotwali at about 11-55 p.m. on the basis of which a case was registered and investigation followed. 4. Sub-Inspector Naththi Prasad (P.W. 19) took up the investigation of the case. He interrogated Sharafat and injured Mahboob Ali at the hospital and reached the scene of occurrence on June 4, 1964 at 11 a.m. He found blood stains lying in front of the door of the deceased and some drops of blood lying in pieces of bricks which were scattered there. He took sample of the blood stained earth and blood stained bricks in his possession. On June 5, 1964 he again visited the place and found some blood stains on the outer door frames of Hamid Ali's house which adjoins the house of Mahboob Ali. He got blood stained pieces of wood cut from the door frames and took them in his possession. The blood stained brick pieces and wood pieces were sub- sequently sent to the Chemical Examiner and Serologist and their reports indicated that the wood pieces were found to be stained with human blood but the origin of blood stains on brick pieces could not be determined owing to its disintegration. 5. As the condition of the injured was found serious his dying declaration Exhibit Ka 3 was recorded by Sri Markandey Singh (P.W. 4), City Magistrate, Bareilly, on June 4, 1964 at 10.30 a.m. in the district hospital in the presence of some medical attendants. Mahboob Ali succumbed to his injuries on the same date at 8-25 p.m. 6. The post mortem examination on the dead body of Mahboob Ali was performed by Dr. Mahboob Ali succumbed to his injuries on the same date at 8-25 p.m. 6. The post mortem examination on the dead body of Mahboob Ali was performed by Dr. K.N. Seth (P.W. 3) on June 5, 1964 at 9 a.m. The deceased was about 28 years of age and had died about half a day earlier and the following ante mortem injuries were found on his person : 1. Stab injury " x " X "on the back of left hand. 2. Stab injury " " x cavity deep of chest and abdomen on the left side of chest at the anterior axillary line, direction downwards and medially. 3. Abrasion 3" x ?" on the right side of chest above the nipple in transverse direction. On internal examination the pleura and diaphragm were found cut under injury No. 2 and there was a wound on the stomach. Death in medical opinion was the result of injury on chest leading to perforation of pleura and diaphragm and of spleen and stomach. 7. At the trial appellants pleaded not guilty to the charge and asserted to have been falsely implicated in the case on account of enmity with the police and the witnesses. Appellant Ramesh has added that a few months before he had fractured his leg and he was physically incapable to move on the date of occurrence. He examined his father Dori Lal (D.W. 1) and his neighbour Ram Bahadur (D. W. 2) in his defence both of whom testified that Ramesh had fractured his leg and was treated in the hospital for the injury a few months before the occurrence and that he was unable to move on the date when the incident took place. 8. The case of the prosecution rested on the testimony of four eye-witnesses namely Sharafat, Akhtar Husain, Shahid Husain and Rais Mian (P. Ws. 1,2,5 and 6) all of whom testified to have seen thy' three appellants arriving together at the door of the deceased and asking him to come out of his house and when he came out of the house appellants Manik Chandra and Madan Lal caught hold of the deceased and appellant Ramesh stabbed him with a knife on his left chest. The prosecution also relied on the dying declaration of Mahboob Ali for bringing the charge home to the appellants. 9. The prosecution also relied on the dying declaration of Mahboob Ali for bringing the charge home to the appellants. 9. The learned Sessions Judge on an assessment of evidence reached a conclusion that the evidence led in defence was wholly unreliable and the testimony of the eye-witnesses as corroborated by the medical evidence and the dying declaration of the deceased has established the charge against the appellant beyond reasonable doubt. Accordingly he convicted and sentenced them as has been stated above. 10. Learned counsel for the appellants Madan Lal and Manik Chandra has strenuously contended that the prosecution case against them is not free from doubt and the Sessions Judge was not justified in recording their conviction on the charge of murder with the aid of section 34 of the Indian Penal Code. It is urged that there is no mention in the first information report that either of these appellant was armed with any weapon and none of the prosecution witnesses .have stated that they had given any blow to the deceased. It is argued that the statements of the eyewitnesses that Madan Lal was armed with a knife when he had caught hold of the deceased is a designed improvement which was effected at the stage of trial to give seriousness to the case because if Madan Lal had been armed with a knife there would be no point in his trying to catch hold of the deceased and not striking him with that knife. It ts pointed out that in view of these infirmities the allegation in the dying declaration that the injury which was found on the hand of the deceased was inflicted by Madan Lal does not inspire reliance. We find force in these contentions. 11. It is significant to note that none of the eye-witnesses has alleged that any one of these two appellants had given any blow to the deceased. It is true that some of them have alleged that at the time of the occurrence Madan Lal was also armed with a knife but in view of this fact not having been mentioned in the first information report which was lodged immediately after the occurrence by the brother of the deceased, we are not prepared to attach any importance to this part of the prosecution story. There is force in the contention of the learned counsel that if Madan Lal had been armed with a knife there was no reason for him to try to catch hold of the deceased and not to give him a blow with his own knife. We are, therefore, satisfied that the allegation of the prosecution that Madan Lal was carrying a knife has not been established beyond reasonable doubt. 12. The eye-witnesses have stated that Manik Chandra and Madan Lal exhorted that the deceased considered himself too big and he should be set right and then they caught hold of the deceased and Ramesh inflicted a blow on his chest with his knife. There is, however, nothing to suggest that Manik Chandra and Madan Lal were aware of the fact that Ramesh was carrying a knife with him and was likely to use it against the deceased. It may be that when they exhorted Ramesh to set right the deceased they were not aware that Ramesh was carrying a knife and that he will use it against the deceased. The allegation that these two appellants caught hold of the deceased does not appeal to us because if Madan Lal was also armed with a knife as alleged by the prosecution then he would have wielded it against the deceased instead of trying to catch hold of him. It is true that in his dying declaration Mahboob Ali has stated that the injury on his hand was caused by Madan Lal but in the setting of facts of this case we are not prepared to attach much importance to the dying declaration firstly, because it has come in the evidence of Sri Markandey Singh that when he recorded his statement the family members of the deceased were present near him and secondly, there is no medical certificate to show that when the deceased gave his statement he was it full possession of his mental faculties capable to know as to what he was stating to the Magistrate. In this setting of facts we are of opinion that even if Madan Lal and Manik Chandra had accompanied Ramesh to the door of the deceased and were present when Ramesh stabbed him it will not be safe to convict them on the charge of murder with the help of section 34 I.P.C. as the evidence and circumstances on the record do not necessarily lead to that conclusion. 13. As regards Ramesh, however, we find that the evidence has been consistent throughout. In the first information report it has been specifically mentioned that it was he who gave the fatal blow on the chest of the deceased. The deceased himself has ascribed that blow to Ramesh in his statement. All the eye-witnesses have stated that it was Ramesh alone who stabbed the deceased. They are natural witnesses being the neighbours of the deceased and their presence at the scene of occurrence is highly probable. We have, therefore, no reason to discard their testimony on this part of the case. It is true that certain documents which have been filed on behalf of Ramesh show that he has got enmity with the police but we are not prepared to accept the argument of the learned counsel that Ramesh has been implicated on account of enmity with the police because there is nothing to show that the witnesses had any special animus against him. 14. Dori Lal (D.W. 1) father of Ramesh is a highly interested witness. Ram Bahadur ((D.W. 2) was unable to give the name of the doctor who according to him had attended Ramesh when he was lying with a fractured bone. It is, therefore, obvious that Ram Bahadur is not a witness of truth and no reliance can be placed on the testimony furnished by him. An argument was raised by the learned counsel that as there was a charge under section 302 read with section 34 I.P.G. against the three appellants and if two of them namely Manik Chandra and Madan Lal are given the benefit of doubt the conviction of the third namely Ramesh on that charge is not sustainable in law. Learned counsel relied in support of his contention on a decision of the Supreme Court in Krishna Govind Patil's case(l). In our opinion, however, Krishna Govind Patil's case is distinguishable on facts. Learned counsel relied in support of his contention on a decision of the Supreme Court in Krishna Govind Patil's case(l). In our opinion, however, Krishna Govind Patil's case is distinguishable on facts. In that case the allegation against all the four accused was that they had overtaken the deceased and had felled him down by giving him lathi blows. In short each one of them was alleged to have given blows to the deceased. That is not the case here. Here the prosecution case which has been established is that it was Ramesh who struck the fatal blow to the deceased and the other two only helped him by catching the deceased. Since the start of the trial, Ramesh knew that according to the prosecution he was solely responsible for giving repeated knife blows to the deceased. Therefore no prejudice has been caused to him by the absence of separate charge against him under section 302 I.P.C. In our opinion the principle of law affirmed by the Supreme Court in Slaney's case (2) is applicable and there is no legal bar in convicting appellant Ramesh under Section 302 simpliciter although no such charge has been framed against him. 15. In the result the appeal of Manik Chandra and Madan Lal is allowed. Their conviction and sentence as recorded by the trial Judge are set aside. They are on bail. Their bail bonds are discharged. They need not surrender. 16. The appeal of Ramesh is dismissed. 17. His conviction under section 302 read with section 34 I.P.C. is altered to one under section 302 simpliciter and the sentence of life imprisonment imposed on him by the trial Judge is maintained.