JUDGMENT 1. - This appeal is directed against the judgment of the learned Sessions Judge, Sri Ganganagar dated 29-3-72. 2. I have heard the arguments and perused the record. Four accused persons Manphool, Lilia, Ratiram and Munshiram were tried by the learned Sessions Judge under sections 304 part II read with section 34 Indian Penal Code upon the allegation that on 8-9-71 at about 8-30 p.m. they belaboured Agya Ram in the house of Manphool Ram in Purani Abadi, Sri Ganganagar and thus caused his death. The deceased had 33 injuries on his person ; 17 abrasions, 9 bruises, two lacerated wounds and sub-conjunctival haemorrhage on the lateral angle of left eye. No external mark of injury was detected on the abdominal wall. He died on 9-9-71 at 8-45 p.m. in the hospital. The post-mortem report stated that Agya Ram died of shock due to multiple injuries and perforation of intestine. 3. The learned Sessions Judge acquitted all the accused of the charge under section 304 Part II but he convicted appellant Manphool Ram of an offence under section 323 Indian Penal Code and sentenced him to rigorous imprisonment for one year, The State has unfortunately not come up in appeal against the acquittal but accused Manphool Ram has filed this appeal against his conviction. 4. The prosecution case is that the deceased made two dying declaration. One was before Hari Kishan P. W. 1. That dying declaration is contained in the police statement of Hari Kishan which is Ex. P. 6. Hari Kishan had told the police that he sprinkled water on the face of Agya Ram lying unconscious in the street. When Agya Ram recovered consciousness he told him that he was beaten by Manphool accused. Hari Kishan resiled from this statement at the time of trial and was even declared hostile. He took up the position that the deceased had simply told him that one Phoolia had beaten him. He also said that the accused Manphool present in the court, was not Phooliya. There is one more dying declaration which is Ex. P 20. This dying declaration was recorded by the Sub-Divisional Magistrate, Sri Ganganagar, in the hospital. In this declaration, Agya Ram said that he went for a drink in the house of Manphool Ram accused. He also said that the accused Manphool present in the court, was not Phooliya. There is one more dying declaration which is Ex. P 20. This dying declaration was recorded by the Sub-Divisional Magistrate, Sri Ganganagar, in the hospital. In this declaration, Agya Ram said that he went for a drink in the house of Manphool Ram accused. After sometime, Manphool told him that he had abused him one day in the presence of a `Baniya' and delivered slap on his face. Thereafter, other accused came and began to beat him. The injury in the abdomen was caused by a kick given by son-in-law of Manphool whose name he did not know. Thus, the only part which the deceased assigned to the appellant was delivery of the slap on the face. Witnesses Jagdish P.W. 2 and Dharma Ram P.W. 3 also turned hostile. 5. The learned Sessions Judge observed that the dying declarations of the deceased Agya Ram can be believed only if there was corroboration. Looking to the character and antecedents of the accused who was reputed to be a history sheeter, it was not improbable that he may have included names of persons who may or may not have beaten him. He was drunk and may have abused Manphool Ram and mis-behaved with the persons close to him at the time and he must have been given a beating. The learned Additional Sessions Judge, therefore, found that the guilt against the accused except Manphool Ram was not proved beyond doubt. He, however, held that the complicity of accused Manphool Ram in beating the accused named in Ex, P. 20 stands proved beyond doubt and it was also corroborated from the facts mentioned in the first information report. 6. I have considered over the judgment of the learned Sessions Judge. It is a pity that a man was murdered by four persons and the accused were able to secure their acquittal in the trial Court and the State has yet not considered it fit to appeal. Manphool Ram's grievance is that the learned Sessions Judge has convicted him under section 323 on the ha$is of the uncorroborated dying declaration. If the deceased could implicate other Accused persons falsely, then, there was every reason why he could not do so in hie ease also. 7. Manphool Ram's grievance is that the learned Sessions Judge has convicted him under section 323 on the ha$is of the uncorroborated dying declaration. If the deceased could implicate other Accused persons falsely, then, there was every reason why he could not do so in hie ease also. 7. But upon consideration of the evidence I find so much of the offence proved from the dying declaration Ex. P. 20 that accused Manphool Ram gave a slap on the face of the deceased. The learned Sub-Divisional Magistrate M. P. Singh P.W. 6 has proved this dying declaration. The dying declaration is admissible in evidence under section 32 of the Evidence Act as a circumstance of the transaction which resulted in the death of Agya Ram for this was a case in which the cause of the death of Agya Ram was into question. While determining the part played by the accused it can be used against him because it was he who let loose a chain of circumstance of beating which ultimately ended in the death of Agya Ram. The dying declaration is corroborated by the medical evidence that there was a bruise and swelling on the left side of the face of the deceased, vide injury No. 6 in injury report Ex. P. 3. I, therefore, uphold the finding of the learned Sessions Judge in this respect and the conviction of the appellant under section 323 Indian Penal Code But it appears that the sentence of one year's rigorous imprisonment is rather excessive for the offence committed by him. I do not consider it a case fit for probation specially in the circumstances which led to Agyaram's death. 8. I, therefore, partly accept this appeal and while maintaining the conviction of the appellant, reduce his sentence to rigorous imprisonment for seven months but he shall be entitled to the benefit of section 428 Cr. P.C. (New). He is on bail and shall surrender to his bail bonds for serving the sentence. If he fails so to do, this appeal shall be deemed to have been dismissed. *******