K. K. ADHIKARI, J. ( 1 ) THIS appeal is against the judgment dated 6-3-1979 where under the appellants have been convicted and sentenced to suffer rigorous imprisonment for five years each for commission of the offence under section 325 of the Indian Penal Code. ( 2 ) THE incident is occurred in the evening of 2nd November 1978, in front of the houses of the appellants, when it is said that the appellants gave beating to the deceased Agnu. The motive behind the crime appears to be the suspicion entertained by Jholatsingh (P. W. 1) of causing the death of his mare by the appellant Vishnu. It may, however, be stated at this juncture, that there is no evidence on record to show that the deceased had, at any time prior to the incident, passed on this information to Jholatsingh (P. W. 1) and/or that appellant Vishnu had come to know of this fact. It is further said that the deceased Agnu while he was passing in front of the houses of the appellants the appellants gave fist blows and kicked him. ( 3 ) JHOLATSINGH (P. W. 1), who was also at the spot, escaped from assault as he ran away from the spot. He has been examined as an eyewitness by the prosecution. The statement of Jholatsingh (P. W. 1) was also recorded under section 164 of the Code of Criminal Procedure during the investigation. He has resiled from that statement in his deposition before the learned Addi. Sessions Judge. The prosecution has tendered the statement recorded under section 164 of the Code which is Ex. P-3. ( 4 ) REVERTING back to the prosecution case, it is said that Jholatsingh (P. W. 1) informed about the beating to the wife of Agnu, Jhuliabai (P. W. 2) who along with her minor son went to the spot and enquired from appellant Vishnu who, it is alleged, avoided the issue. Jhuliabai (P. W. 2) returned home and went again to the spot at about 8 p. m. with Ramcharan (P. W. 5), Samanu (P. W. 4) and one Jethu. These witnesses saw Agnu in the verhandah of the appellant Vihsnu. Jhuliabai (P. W. 2) returned home and went again to the spot at about 8 p. m. with Ramcharan (P. W. 5), Samanu (P. W. 4) and one Jethu. These witnesses saw Agnu in the verhandah of the appellant Vihsnu. On this occasion, however, on enquiry from Ramcharan (P. W. 5), Jhuliabai (P. W. 2) and Samanu (P. W. 4), appellant Vishnu is stated to have accepted the responsibility of the beating and also prepared to face the consequences. It is in the testimony of Jhuliabai (P. W. 2) that Agnu had regained consciousness and told her that the appellants have beaten him. Ramcharan (P. W. 5) corroborates this statement of Jhuliabai (P. W. 2) while Samanu (P. W. 4) does not speak about this aspect. Thereafter, these persons returned to their houses. ( 5 ) AT this stage, it will be pertinent to refer to the statement made by Jhuliabai (P. W. 2) disclosing the chain of events. The incident is of Thursday. The Kotwar of the village was informed of the incident on Friday, who went to report at the police-station Kundan. The Kotwar returned on Saturday and informed Jhuliabai (P. W. 2) that Agnu should be taken to the police-station. On the same day, the police reached the village in connection with the report made by Jholatsingh (P. W. 1) regarding the death of his mare. The police informed Jhuliabai (P. W. 2) to take Agnu to Dr. Sushil Rai (P. W. 3) at selodi. Agnu was taken to Dr. Shushil Rai (P. W. 3) at Selodi by appellant Vishnu, appellant Chaitu, Parlkari, Pachoula, Jethu and Ramcharan (P. W. 5) in view of his serious condition. ( 6 ) AT Selodi, according to the statement of Dr. Sushil Kai (P. W. 3), he examined Agnu at about 3 a. m. and found that he was passing blood with urine and his abdomen was swollen. This witness came to know from the persons accompanying Agnu that it was a medico legal case. He, therefore, asked them to report the matter to police and did not treat him thereafter. Agnu was, therefore, brought to Kundan where he reported the matter at the police-station Kundan which was recorded in the Roznamcha Sanha dated 7-11-1978, Ex. P-I. ( 7 ) AGNU was referred to Dr. R. N. Oza (P. W. 7) who was working as Asstt. Agnu was, therefore, brought to Kundan where he reported the matter at the police-station Kundan which was recorded in the Roznamcha Sanha dated 7-11-1978, Ex. P-I. ( 7 ) AGNU was referred to Dr. R. N. Oza (P. W. 7) who was working as Asstt. Surgeon, Primary Health Centre for about 18 hours. On 9th November 1978, after receipt of the urine report, Dr. Oza (P. W. 7) suspected rupture of kidney and. decided to refer the matter to the victoria Hospital, Jabalpur. ( 8 ) EXHIBIT P-6 is the Bed Head Ticket of Agnu showing treatment given to him at the Victoria Hospital, produced through R. P. Mishra (P. W. 8 ). He was admitted in the Victoria Hospital on the 8th November 1978 and his treatment commenced from the same day. Agnu died on 9th November 1978 in the evening. The post-mortem was conducted by Dr. O. K. Sakalye (P. W. 15) and the report is Ex. P-12. The death of the deceased Agnu was due to generalized peritonitis as a result of rupture of urinary bladder due to the impact of hard and blunt object. The injuries were ante mortem and could be caused by fists and kicks. Injuries to the bladder were sufficient to cause death in the ordinary course of nature. Intimation was sent to the police relating to the death of Agnu, upon which an offence under section 302 of the Penal Code was registered. ( 9 ) ON evaluation of the prosecution evidence on record, the learned Judge held the offence proved against the appellants on the basis of the Roznamcha Sanha (Ex. P-I), treating it to be a dying declaration and other attending circumstances. ( 10 ) THE learned counsel appearing for the appellants submitted that there was inordinate delay in lodging the report with the police which in itself is enough to reject the prosecution case. As a general principle of law, it is no doubt true that the delay in lodging the report is an important circumstance but every such delay is not necessarily fatal to the prosecution. ( 11 ) IT will be seen from the statements of Jhuliabai (P. W. 2), Samanu (P W. 4) and Ramcharan (P. W. 5) that they had not noticed any external injury on the person of the deceased Agnu when these witnesses went to the spot. ( 11 ) IT will be seen from the statements of Jhuliabai (P. W. 2), Samanu (P W. 4) and Ramcharan (P. W. 5) that they had not noticed any external injury on the person of the deceased Agnu when these witnesses went to the spot. In the absence of any external injuries to tile person of Agnu, these witnesses, who are all villagers, did not take the matter seriously. Under these circumstances, the question of reporting the matter immediately to the Kotwar or the police did not arise. It is further seen from the statement of Jhuliabai (P. W. 2) that when the Kotwar was informed, be left the village to lodge the report the next day, that is, Friday, to police station, Kundan. According to this witness the Kotwar returned to the village on Saturday and informed her that the police authorities wanted Agnu to be taken to Kundan at a distance of 10 miles from the place of incident. The fact that no efforts were made to lodge the report does not, at all, shake the prosecution case, under the facts of this particular case. It is only when the condition of Agnu started deteriorating, the injured was taken to Selodi, the nearest place where some medical assistance was available. It was only after Dr. Shushil Rai (P. W. 3) came to know that it was a medico-legal case, he stopped treatment and advised the persons accompanying Agnu to lodge a report with the police. The matter, therefore, required to be reported, perhaps, in order to obtain medical assistance. An important fact which cannot be lost sight of at this stage is, both the appellants had accompanied Agnu to Selodi Jhuliabi (P. W. 2) was not there with Agnu at Selodi. Therefore, the possibility that the delay could also be due to the presence of the appellants cannot be ignored. It has to be also taken in consideration in addition to the explanation that they were waiting for transport. In view of these peculiar circumstances, the delay is not of any consequence. ( 12 ) IT was further argued by the learned counsel that it was strange for the police to ask Jhuliabai (P. W. 2) to take Agnu to a private medical practitioner at Selodi instead of referring the case to Government hospital. This argument is of no substance. ( 12 ) IT was further argued by the learned counsel that it was strange for the police to ask Jhuliabai (P. W. 2) to take Agnu to a private medical practitioner at Selodi instead of referring the case to Government hospital. This argument is of no substance. There were admittedly no external injuries on the person of Agnu. His condition was deteriorating, and therefore, she was advised to take Agnu to the nearest place. This is not such a circumstance to reject the prosecution case. At this stage, it will be pertinent to mention that even when Agnu reported the matter at the police station, Kundan, it was recorded in Sanha. It is a matter of common knowledge that when there is no apparent external injury showing cognizable offence, reports are recorded in Sanha. The learned Panel Advocate for the State contended that under the provisions of section 154 of the Code of Criminal Procedure, a first information report is recorded by the officer-in-charge of the police station who was not the rclavant date, on leave. According to the counsel for the appellants, the head-constable was in-charge of the police station and he could have recorded the first information report. In my opinion, since no cognizable offence was apparent, recording the report in Sanha is not fatal to the prosecution. ( 13 ) NEXT it was contended that the Sanha (Ex. P-i) could not be treated as a dying declaration under section 32 (1) of the Evidence Act as there was no imminent danger to the life of Agnu. It was further submitted that unless a statement is recorded as a dying declaration, it cannot be so treated. This submission advanced by the learned counsel deserves outright rejection. A perusal of section 32 (1) of the Evidence Act would show that in order to make a statement admissible as a dying declaration the only requirement is that it should relate to the cause of his death, in case where that persons death comes in question. It is further provided that such a statement it relevant whether the person making the statement was or was not under expectation of death. The learned counsel submitted that the Sanha, which is the substance of the report made and not signed by the person making the report should be rejected as inadmissible. It is further provided that such a statement it relevant whether the person making the statement was or was not under expectation of death. The learned counsel submitted that the Sanha, which is the substance of the report made and not signed by the person making the report should be rejected as inadmissible. This argument is again misconceived, because the admissibility relevancy relating to the cause of his death is under section 32 (1) of the Evidence Act, if the maker dies subsequently and his death comes in question. The dying declaration is also not required to be signed by the maker. All that is required is that it should be complete. A perusal of Exhibit P- 1 would show that the accusation against the appellants was complete. Exhibit P-i, therefore, is relevant and can be looked into. Then is another aspect: It is a settled principle that a Court is entitled to convict on the sole basis of a dying declaration, if the Court is satisfied that in the circumstances of the case, it can be regarded as truthful, but, according to the learned counsel for the appellants, in view of the circumstances occurring in this case, it should not be accepted unless corroborate. The learned Judge has already enumerated the attending Circumstances which corroborate Ex. P-i. I see no reason to take any contrary view. In addition, the statement in the testimony of Jhuliabai (P. W. 2) to the effect that the deceased told her that Chaitu and Vishnu had assaulted him having not been challenged in her Cross-examination also corroborates the dying declaration. ( 14 ) NEXT contention of the learned counsel was regarding the non examination of the Kotwar and the constable who advised Jhuliabai to take Agnu to private medical practitioner at Selodi. In my opinion, non-examination of the constable does not weaken the prosecution case as it is not disputed that Agnu was taken to Selodi for medical treatment. The non-examination of the Kotwar is also not fatal to the prosecution as the statement of Jhuliabai (P. W. 2) that Agnu should be taken to the police-station is unchallenged in the cross-examination. The statement made by Ramcharan (P. W. 5) that the police wants Agnu should be taken to the police-station if the injuries are serious. As already stated, there were no external injuries on the person of the deceased Agnu. The statement made by Ramcharan (P. W. 5) that the police wants Agnu should be taken to the police-station if the injuries are serious. As already stated, there were no external injuries on the person of the deceased Agnu. The matter was not taken to be serious until his condition started deteriorating. Under these circumstances, failure on the part of the prosecution to examine the Kotwar and the constable was not fatal. The other witnesses examined by the prosecution had already unfolded the prosecution case. ( 15 ) THE learned counsel also referred to Some of the omissions in the testimony of Jhuliabai (P. W. 2) and Ramcham (P. W. 5) and submitted that these omissions amount to contradiction. In my opinion, there is no material omissions in the statements fact there is no omission at all in Exhibitp-i which is the statement recorded by the police of Jhuliabai (P. W. 2 ). The omission in the case diary statement (Ex. D. 2) of Ramcharan (P. W. 5) is also of no consequence. There two witnesses have deposed consistently and have no room for doubt. ( 16 ) THE learned counsel further contended that according to the testimony of Dr. D. K. Sakalye (P. W. 15) and the post-mortem report (Ex. P-12), the cause of death was generalized periton it is as a result of rupture of urinary bladder. It was contended that no rupture of urinary bladder is possible unless the pubic bones are fractured. In the absence of fracture of pubic bones, it was sought to make out that fists and kicks would not cause rupture of urinary bladder. This argument is wholly misconceived. According to Dr. D. K. Sakalye (P. W. 15), there was rupture of urinary bladder. The fact [hat no pubic bones were fractured go to show that the bladder was distended. The doctor has also stated in his deposition that injuries were ante-mortem and could be caused by fist blows and kicks. The internal injuries have also been described to be sufficient in the ordinary course of nature to cause death. ( 17 ) IT was also submitted that in the absence of a charge under section 34 of the Penal Code, the appellants cannot be convicted under substantive offence under section 325 of the Penal Code, as the prosecution had failed to prove which of the appellant had caused the fatal blow. ( 17 ) IT was also submitted that in the absence of a charge under section 34 of the Penal Code, the appellants cannot be convicted under substantive offence under section 325 of the Penal Code, as the prosecution had failed to prove which of the appellant had caused the fatal blow. It was submitted that there is no evidence to connect appellant Chaitu with the offence. In my opinion, this contention cannot be accepted. The object of the charge is to warn the accused persons of the case which they have to face. The omission to mention section 34 of the Penal Code does not affect the case, particularly when the intention is a question of fact to be gathered from the evidence. It is seen that the appellants have been consistently named as the assailants of the deceased Agnu. There is nothing on record to show that either of them was particularly responsible for giving fist bellows or kicks in the abdomen of the deceased under the circumstances, common intention has to gathered from the evidence on record. The counsel then submitted that there is no evidence to show that there was any prior consort of mind or premeditation. No prejudice can be said to have been caused to the appellants on this count as both faced the trial for the offences under section 302 and under section 302/34 of the Indian Penal Code respectively and held that the appellants liable under section 325 of the Penal Code. At any rate, the principles laid down by the Supreme Court in Wazir Singh v. State of Punjab1 squarely covers the point raised. It has been laid down that when it is doubtful as to who out of the two was responsible for the fatal injuries, there was nothing to choose between the two and both are equally guilty, when there being at no time any common intention entertained by the two. Therefore, no illegality has been committed by the learned trial judge. The appellant Chaitu can still be convicted under section 325 of the Penal Code on the basis of the evidence by this Court as no distinction can be made between the acts of the appellants. Therefore, no illegality has been committed by the learned trial judge. The appellant Chaitu can still be convicted under section 325 of the Penal Code on the basis of the evidence by this Court as no distinction can be made between the acts of the appellants. ( 18 ) LASTLY, it was argued that even if the prosecution case is accepted as it is, the offence at the most, would be under section 323 of the Penal Code and not under section 325 of the Penal Code as no knowledge could be imputed of distended bladder to the appellants. In my opinion, the learned Judge has rightly convicted the appellants under section 325 of the Penal Code holding that since only fists and kicks were used, no knowledge or intention to cause or likely to cause death can be imputed to the appellants. It was next stated that the sentence awarded is too severe. The incident is of 1978. The appellants are on bail. In my opinion, the ends of justice would be met if the sentence of rigorous imprisonment of five years is altered to rigorous imprisonment for three years. ( 19 ) IN the result, the appeal of the appellants is partly allowed. Their conviction under section 325 of the Penal Code is maintained but the sentence of R. I. of five years is reduced to R. I. for three years. The appellants, who, are on bail, shall surrender to serve out the remaining part of their sentence. Their bail bonds are cancelled. The appellants shall be entitled to set off for the period spent in custody. .