P.S.KAILASAM, J. (1) ON 4/05/1978 we pronounced orders in court allowing the appeal by the State (Delhi Administration) setting aside the acquittal of both the respondents and convicting both the accused under S. 326, 1. P. G. and sentencing them to six years rigorous imprisonment each. We proceed to give our reasons. (2) THE respondents Ram Kishan alias Phokan and Vishwa Bandhu alias Billa were tried by the Additional Sessions Judge, Delhi, on a charge under Section 302, read with S. 34, 1. P. C. The learned Judge found both the accused guilty for an offence under S. 302, read with S. 34, 1. P. G. and sentenced them to imprisonment for life. The two respondents preferred separate appeals-Vishwa Bandhu preferred Cr. A. 132 of 1972 and Ram Kishan Cr. A. 178 of 1972 to the High court of Delhi, against their conviction and sentence. The High court heard both the appeals together and allowed them by a common judgment setting aside the conviction and the sentence imposed upon the two accused and acquitted them. The State (Delhi Adminstration) has preferred the present appeal against the judgment of the High court acquitting the respondents of the offences with which they were charged. (3) THE facts of the case may be briefly stated. The deceased Mool "Chand, a police constable who was in plain clothes, caught hold of Phokan atQ,utabRoad near Star Hotel at about 2.30 p.m. on 8/06/1971. Phokan had a knife in his hand. He tried to release himself from the hold of Mool Chand but failing in his attempt shouted to Billa who was standing nearby. Billa rushed to the spot in response to the call of Phokan with an open knife. On reaching the spot Billa stabbed Mool Chand in the abdo- men. On getting free from the hold of Mool Chand, Phokan inflicted a knife injury on the chest of Mool Ghand. Mool Chand gave chase to the assailants but they escaped towards Narain Market. Owing to the injuries, Mool Chand fell near the shop of Subhash Chand (Public Witness 4). According to the prosecution the occurrence was witnessed not only by Subhash Chand but also by Mohinder Nath (Public Witness 5) and Niranjan Singh (Public Witness 7) who gave chase to the assailants. Owing to the injuries, Mool Chand fell near the shop of Subhash Chand (Public Witness 4). According to the prosecution the occurrence was witnessed not only by Subhash Chand but also by Mohinder Nath (Public Witness 5) and Niranjan Singh (Public Witness 7) who gave chase to the assailants. Mool Chand told Subhash Chand that he was a police constable and that Subhash Chand may ring up the police Control Room and inform them of the stabbing incident. Accordingly a message was sent to Public Witness 9 Shiv Kumar at the police Control Room which was received at 2.46 p.m. Shiv Kumar transmitted the message to the Flying Squad and informed the Police Station at Sadar Bazar. Soon after, Jaipal Singh (Public Witness 11) reached the spot of occurrence and removed Mool Chand to the hospital. (4) THE Investigating Officer, Hari Singh (Public Witness 26), went to the place of occurrence but on learning that the injured had been removed to the hospital proceeded there. On learning that the injured was not in a fit con- dition to make the statement Hari Singh (Public Witness 26) returned to the scene of occurrence and there recorded the statement of eye-witnesses (PWs 4, 5 and 7). (5) ON the next day, 9/06/1971, (Public Witness 23), C. M. Ludhiani, made an application to Shri. S. C. Jain, the Judicial Magistrate, for recording the dying declaration of Mool Chand. The Magistrate went to the hospital and after satisfying himself that Mool Chand was in a fit condition to make the statement recorded the dying declaration of Mool Ghand in the presence of the doctor. Nine days later on June 18, Mool Chand died. Dr. Bhagat Singh (Public Witness 3) performed the autopsy on the dead body of Mool Chanci on 19/06/1971. The evidence of Dr. Harish Ghander Narang (Public Witness 24), who examined Mool Chand on his admission to the hospital and the post- mortem certificate disclosed that Mool Chand had two stab injuries, one on the left side of the lower abdomen and the other an incised wound on the chest in mid-line. The cause of death was peritionitis. (6) THE prosecution mainly relied on the dying declaration recorded by the Judicial Magistrate and the testimony of the eye-witnesses PWs 4, 5 and 7. The trial court accepted the dying declaration as true and trust- worthy. The cause of death was peritionitis. (6) THE prosecution mainly relied on the dying declaration recorded by the Judicial Magistrate and the testimony of the eye-witnesses PWs 4, 5 and 7. The trial court accepted the dying declaration as true and trust- worthy. It also accepted the testimony of the eye-witnesses and found that the prosecution had proved beyond doubt that the two respondents were the assailants and they caused injuries in the circumstances stated by the prosecu- tion and were guilty of an offence under S. 302, read with S. 34, 1. P. C., and sentenced them to imprisonment for life. (7) ON appeal the High court in acquitting the accused held that the prosecution had not proved the case against the two respondents beyond reasonable doubt. (8) THE High court accepted the evidence of Shri S. C. Jain, Judicial Magistrate, and found that he is completely an independent witness and that he had no motive to prepare a false record of the statement of the deceased. It held that the statement was made by the deceased before the Judicial Magistrate and the statement contained a truthful version of the circumstances resulting in his death together with the names of the assailants. Having found that the dying declaration is true and acceptable the High court proceeded to determine whether the two respondents were the assailants of the deceased. It may be noted that in the dying declaration Mool Chand, the deceased, stated that he caught hold of Phokan who had a knife and when Phokan tried to free himself but could not he called his companion Billa who came there and stabbed him with a knife. The High court accepted the statement of the deceased that he had caught hold of Phokan and on Phokans calling his companion Billa had come and both Billa and Phokan stabbed the deceased. The High court after having held that Phokan and Billa were the assailants came to the conclusion that the identity of the respondent as Phokan and Billa had not been established. During the trial Ram Kishan, the accused, admitted in his statement that he was also known as Phokan. The High court after having held that Phokan and Billa were the assailants came to the conclusion that the identity of the respondent as Phokan and Billa had not been established. During the trial Ram Kishan, the accused, admitted in his statement that he was also known as Phokan. On the face of the clear admission by Ram Kishan that he was also known as Phokan there could be very little difficulty in coming to the conclusion that Phokan mentioned in the dying declaration by Mool Chand was also known as Ram Kishan, the respondent in this case. We must confess that we feel considerable difficulty in following the reasoning of the High Court that the prosecution has not succeeded in establishing that Billa referred to in the dying declaration is not the respondent who is also known as Vishwa Bandhu. It is no doubt true that Mool Chand in his dying declara- tion has not stated that Billa was also known as Vishwa Bandhu. But we find that there is over-whelming evidence to prove that Billa had an alias as Vishwa Bandhu. The High court while accepting the dying declaration observed that the deceased had named Phokan and Billa as assailants but Vishwa Bandhu accused in his statement under S. 342, Cr. P. G., had denied that his pet name was Billa. He stated that he was also known by the name of Bandhu. The High court came to the conclusion that there was no clear or convincing evidence on the record to prove that Vishwa Bandhu accused was known as Billa or that it was Vishwa Bandhu, the accused, who had given the knife blow to the deceased in the abdomen. (9) ON a close scrutiny of the testimony of the eye-witnesses PWs 4, 5 and 7, we find that the trial court was right in accepting their testimony. We find that the reasons given by the High court for rejecting the testimony of the eye-witnesses are unsound and unconvincing. (10) ACCORDING to the prosecution Public Witness 4 saw the occurrence from a distance of 14 feet while Public Witness 7 saw it from a distance of 29 feet. Mohinder Nath (Public Witness 5) was standing near the gents lavatory opposite to the scene of occurrence at a distance of 65 feet. (10) ACCORDING to the prosecution Public Witness 4 saw the occurrence from a distance of 14 feet while Public Witness 7 saw it from a distance of 29 feet. Mohinder Nath (Public Witness 5) was standing near the gents lavatory opposite to the scene of occurrence at a distance of 65 feet. Public Witness 5 stated that he heard Ram Kishan calling his companion by name Billa and further saw Vishwa Bandhu stabbing Mool Ghand in the abdomen on the right side and Ram Kishan tabbing Mool Chand in the middle lower portion of the chest. Public Witness 5 further stated that Public Witness 7 and PW4 ran after the assailants but the assailants escaped inlide the Narain Market. The High court rejected the testimony of Public Witness 5 on the ground that as the witness was standing at a distance of 65 feet from the place where the deceased was stabbed and as there was traffic on the road when the occurrence took place, it was not possible for the witness to have heard the name of BiUa. The High court also found that if Billa was accompanying Phokan at the time in the normal course he would have been looking towards Phokan and in that case the statement of the witness that Billa was standing with ha flue towards him cannot be believed. We find that the reasons for rejection of the evidence of Public Witness 5 are totally unsustain- able. The occurrence was in broad day-light at about 2 p.m. and we do not see any difficulty in the witness seeing the assailants at a distance of 65 feet even though there would have been traffic on the road. That Billa would have been looking towards Phokan and therefore the evidence of Public Witness 5 that he was standing with his face towards him is unacceptable, is ignoring realities. It is most unlikely that either the assailants or the witness would have taken a definite position and were sticking to that throughout the incident. Billa would have been on the move and so also the witness and we see no difficulty in accepting the testimony of Public Witness 5 that he saw Billa. Equally unconvincing is the reason given by the High court for rejecting the testimony of Public Witness 7. Niranjan Singh (Public Witness 7) has a laundry. Billa would have been on the move and so also the witness and we see no difficulty in accepting the testimony of Public Witness 5 that he saw Billa. Equally unconvincing is the reason given by the High court for rejecting the testimony of Public Witness 7. Niranjan Singh (Public Witness 7) has a laundry. While he was passing in the verandah of _the Star Hotel at 2.30 p.m. he saw Mool Chand holding Ram Kishan by his arm. He also saw Ram Kishan holding a knife in hu haad and at that time Ram Kishan known as Phokan tried to free himself and called billa and where upon Vishwa Bandhu stabbed Mool Chand with a knife in the abdomen and getting himself freed. Ram Kishan stabbed Mool Ghmdntiw chest. Public Witness 7 stated that he knew Ram Kishan as well as Vishwa Bandhu as they used to come to his laundry to get their clothes cleaned. In his statement to the police the witness had named Billa as Vishwa Bandhu alias Billa. The High court found in its judgment that as PW 7 had said in his cross-examination that he did not know the name of Vishwa Bandhu before the occurrence, the statement alleged to have been recorded by the police, on 8/06/1971 would not have been recorded on that date. From the statement of Public Witness 7 in the court that he did not know the name of Vishwa Bandhu before the occurrence i.e. on 8/06/1971, it cannot be inferred that the statement recorded by the police later in the day in which the witness had named Billa as Vishwa Bandhu alias Billa could not be recorded on that day. The rejection of the testimony of PW 7 on the ground mentioned by the High court cannot be accepted. (11) ONE other point made by the High court is that the names of PWs 5 and 7 had not been mentioned in the First Information Report by Public Witness 5. As already stated Public Witness 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what Public Witness 4 was concerned was with the transmission of the message to the police and to get help for the injured so that he may be properly treated. As already stated Public Witness 4 was told by the deceased that he was a police constable and that information may be given to the police. At that time what Public Witness 4 was concerned was with the transmission of the message to the police and to get help for the injured so that he may be properly treated. The failure to mention the names of other eye-witnesses would not in any way affect the testimony of PWs 5 and 7. We are also not impressed with reasons given by the High court for rejecting the evidence of Public Witness 4 who gave the First Information Report. (12) WE have no hesitation in agreeing with the appreciation of the evidence by the trial court of the three eye-witnesses and accepting their testimony. (13) THE High court has referred to the discrepancy in the evidence of Public Witness 4 as to who caused the injury in the abdomen. There is no doubt some discrepancy between the evidence of Public Witness 4 and his earlier statement as to which accused caused the most serious injury in the abdomen. We are satisfied that the dying declaration of Mool Chand and the evidence of PWs 4, 5 and 7 establish the prosecution case that while Mool Chand held Phokan the latter called for help and Billa came and stabbed Mool Chand and when Mool Chand released his grip Phokan also gave a stab. Taking into account the circumstances of the case, we are satisfied that an intention to cause the death cannot to be discarded. It is clear that Phokan wanted to escape from the clutches of Mool Chand and he was unable to do so. He called for help. But as the accused had caused grievous injury with a knife there could be no difficulty in coming to the conclusion that each one of them shared the common intention and will be guilty of an offence under S. 326, Indian penal code While setting aside the order of acquittal by the High court, we find that the two accused are guilty of an offence under S. 326, Indian penal code and impose a sentence of six years rigorous imprisonment. The order of acquittal is set aside and the appeal is allowed to the extent indicated above.