JUDGMENT 1. - Four accused-appellants along with one Shohrat alias Samim were tried by the learned Additional Sessions Judge, No.3 Dholpur under sections 302, 302/149/IPC and other offences. The four accused-appellants have been convicted whereas the fifth accused, namely, Shohrat, alias Samim, was acquitted. Accused-appellant Fazal has been convicted under sections 302 IPC simpliciter whereas the other three accused-appellants have been convicted under section 302 read with section 149 IPC. Fazal and Hamid Ali have further been convicted under section 148 IPC whereas the other accused-appellants, namely, Hamid Khan and Sahzada have been convicted under section 147 IPC. Under section 302 or 302 read with section 149 IPC each of the accused has been sentenced to life imprisonment and to pay fine of Rs. 500/. or, in default of payment of fine, to further suffer rigorous imprisonment for three months. The accused-appellants Fazal and Hamid All have been sentenced to 9 months' rigorous imprisonment under sections 148 IPC and other accused-persons have been sentenced to six months' rigorous imprisonment under section 147 IPC. The substantive sentences of the accused-appellants have been ordered to run concurrently. 2. In the town of Dholpur in a lane known has Kachehri lane, the house of Natthilal is situated. The houses of some of the accused-persons are also situated in the same lane. The accused-appellant Hamid Ali is brother-in-law of accused Fazal Khan and is not a resident of Dholpur. The case of the prosecution is that on May 26, 1980, in the day the son of Natthilal and the son of accused-appellants had quarrelled over kite-flying. On the same day at about 11.15 p-m it is alleged that all the four accused-appellants alongwith Samim (since acquitted) and one more person who is not named, came to the house of Natthilal, who had just finished his dinner. They asked Natthilal to come out of the house and when Natthilal came out, it is alleged that the accused-persons asked him, as to why his son had quarrelled with their sons on kite-flying. Natthilal deceased gave out that the sons of accused-persons abused his son. The accused-persons at this started beating Natthilal and gave him fist blows. The accused-appellant Fazal Khan and Hamid Ali are said to have been armed with knives. Each of them inflicted injuries by knife to Natthilal. Accused Hamid Khan is said to have been armed with lathi. Natthilal deceased gave out that the sons of accused-persons abused his son. The accused-persons at this started beating Natthilal and gave him fist blows. The accused-appellant Fazal Khan and Hamid Ali are said to have been armed with knives. Each of them inflicted injuries by knife to Natthilal. Accused Hamid Khan is said to have been armed with lathi. Accused-appellant Ha mid Khan gave lathi blow on the back of Natthilal. The other accused also gave beating to him. The occurrence is said to have been witnessed by Smt. Sunita (PW 1) wife of Natthilal deceased, Vipti (PW 4) and Sannu (PW 5). Witnesses Vipti and Sannu are said to have witnessed the occurrence while standing on their roof, whereas Smt. Sushila (PW 1) saw it from her house. Madan Kumar (PW 6), real brother of Natthilal, took the injured to the hospital and also lodged the report at Police Station Dholpur on the same day immediately after the occurrence. The FIR is Ex. P 13 and the case was registered vide Ex. P 14 and the investigation was set in motion. 3. Natthilal was first taken to the emergency ward of the hospital at Dholpur where he was attended by Ram Sanehi (PW 8) compounder. PW 10 Govind Ram also reached the hospital and it is alleged that Natthilal made dying declaration to the above named two witnesses, wherein he named all the accused-persons as his assailants. 4. Dr. Mohanlal (PW 2) examined Natthilal injured when he entered the hospital. He died as a result of the injuries on May 27, 1980 at 8.00 PM Autopsy was conducted on his dead-body by Dr. Mohanlal who found three external injuries on the dead-body of Natthilal deceased. (i) Bruise 2" x 1/2" obliquely on the upper ⅔rd and outer aspect (R) back. (ii) Incised penetrating wound 3/4" x 1/4" x bone deep obliquely and directing down-wards and touching the bone on the upper part of sccrum 1/2" left to the mid line. (iii) Incised penetrating wound 11/2" x 1/2" and packed with guaze obliquely on the upper ⅓rd and postero-lateral aspect (R) Thigh 8" from the Quarter trachanter of the (R) femur and on removed the blood sonefeed gauze from the wound, the wound was 6" and directing from below upwards and medially and on dissection (R) femoral vein was found-having on opening 1/4" x 1/4" on the (R) femoral Triangle. In the opinion of the doctor the cause of death was haemorrhage from the right femoral vein. 5. The accused-persons were arrested. At the instance of accused appellants Fazal Khan and Hamid Ali and on the basis of information supplied by them under section 27 of the Indian Evidence Act, knives were recovered. The accused-pleaded not guilty and claimed to be tried. 6. After recording evidence for prosecution, each of the accused persons was examined under section 313 Cr. PC. They took a bare plea of denial. Accused Fazal Khan has taken a plea that he was posted as a Nakedar on Octroi post Gwalior Road, Dholpur. His duty hours were from 2 PM to 10 PM. He handed over the charge at 10-PM and then left for the house which is at a distance of about 3 kms. It takes about 15 minutes to reach the house. When he was returning to the house on the day of occurrence, the Station House Officer met him near the kotwali and informed him about the occurrence which had taken place in his Mohalla. Hamid Khan also took a plea that he returned from the work at about 12 or 1 in the night. Hamid Ali, a resident of Lashkar (Gwalior), who is a brother-in-law of Fazal Khan, took a plea that he was at his house in Gwalior and received a letter from his sister that Fazal Khan, his brother-in-law, has been arrested and he should come to Dholpur. He came to Dholpur and returned to Gwalior with his sister. The accused-persons examined Ashok Kumar and Fakir Mohammad DW I and DW 2 respectively in support of their plea taken by Fazal Khan. Learned Additional Sessions Judge convicted and sentenced the four appellants, whereas accused Samim was acquitted as aforesaid. 7. We have heard learned counsel for the appellants and also learned Public Prosecutor. We have been taken through the material on record. The contention of the learned counsel for the appellants is that the occurrence is said to have taken place on a petty matter of kite-flying and only three injuries, two by sharp edged weapon and one by blunt weapon, were found on the deceased parson. He, therefore, submits that all the accused-persons could not have participated in the beating to Natthilal and because of enmity they have been falsely implicated. He, therefore, submits that all the accused-persons could not have participated in the beating to Natthilal and because of enmity they have been falsely implicated. He further contends that so far as dying declaration said to have been made by Natthilal to PWs Ram Sanehi and Govind Ram is concerned, the same cannot be relied upon because there is material on record to show that after having received injuries Natthilal w is unconscious and was not in a position to have made the dying declaration. So far as statement Ex. P 24 made to Ramhet, Station House Officer (PW 13) is concerned, contention of the learned counsel for the appellants is that Rajasthan Police Rules 6.23 were not complied and that apart, looking to the condition of Natthilal, he could not have made such a detailed statement. Therefore, Ex. P 24 should not be relied upon. Dealing with the statement of Smt. Sushila (PW I) wife of Natthilal Vipti (PW 4) having been declared hostile, the contention of the learned counsel for the appellants is that these statements are full o' contradictions and so far as Sannu is concerned, he is highly interested witness and no reliance should be placed on his statement. Lastly, earned counsel for the appellants contended that each of the accused Fazal Khan and Hamid Ali are said to have inflicted one injury by knife to Natthilal and none of the injuries is on the vital part of the body. If the intention of the accused persons would have been to cause the death of Natthilal, they would have inflicted much more injuries and atleast would have inflicted injuries on the vital part of the body of the deceased. Therefore, it is not a case where it can be said that the accused-persons intentionally caused the death of Natthilal. According to the learned counsel for the accused-appellants, it is not a case where the accused persons formed an unlawful assembly for committing riot and the common object of the assembly was not to cause the death of Natthilal. 8. Learned counsel for the State on the other hand has supported the judgment of the learned Additional Sessions Judge and contended that there is no reason to disbelieve the dying declaration made to an independent witness Ram Sanehi, compounder of emergency ward. 8. Learned counsel for the State on the other hand has supported the judgment of the learned Additional Sessions Judge and contended that there is no reason to disbelieve the dying declaration made to an independent witness Ram Sanehi, compounder of emergency ward. As per the statement of Smt. Sushila and Sannu all the accused-persons came together in that odd hour, gave beating to Natthilai and therefore they formed an unlawful assembly and the common object of which was to cause the death of Natthilal. He further contended that the manner in which the beating was administered and that too with the knife, leaves no manner of doubt that the intention of the accused-appellant was to cause the death of Natthilal. 9. We have considered the rival contentions of both the parties. It may be stated at the out-set that the quarrel is said to have taken place on a petty matter of kite-flying. Four accused-appellants alongwith Samim (since acquitted) and one unknown person are said to have come to the house of Natthilal at about 11.15 p.m. As already stated above, the doctor found only three injuries and as per the statement of the doctor the possibility cannot be excluded that the injury No. 1 might have been received by a fall on the ground. Apart from her statement, looking to the position of the injured, the possibility that this injury might have been received when Natthilal fell down on the ground cannot be excluded. At any rate, the presence of three injuries, two by sharp edged weapon and one by blunt weapon, on the person of Natthilal excludes the participation of more than three persons. We will later on deal with the question as to whether Hamid Khan caused the injury by a lathi (injury No. I) to Natthilal or not. 10. The case rests on the testimony of Smt. Sushila (PW I) and Sannu (PW 5). Smt. Sushila (PW I) is the wife of deceased Natthilal. The occurrence took place at about 11:15 P.M. on May 26, 1980 outside the house of Natthilal and the presence of Smt. Sushila at that hour is natural. Smt. Sushila has stated that the accused persons came there and called Nitthi. When Natthilal came out Fazal Khan enquired as to why his son quarrelled with his son on the matter of kite-flying. Smt. Sushila has stated that the accused persons came there and called Nitthi. When Natthilal came out Fazal Khan enquired as to why his son quarrelled with his son on the matter of kite-flying. At this Natthilal told that his (Fazal's) sons abused him. At this Fazal gave blow by knife to Natthilal and the other blow by knife was given by Hamid Ali. She also stated that Hamid Khan gave lathi blow on the back of Natthilal. Her statement that all other accused-persons gave beating to Natthilal does not stand the test of scrutiny as we have already stated that the doctor found only three injuries on the person of Natthilal. Learned counsel for the accused-appellants has contended that the identity of Hamid Ali cannot he said to be proved. it is contended that the name of Hamid Ali does not find mention in the FIR Ex. I' 13 lodged by Madan Kumar (PW 6). Madan Kumar (PW 6) is not an eye-witness Of the occurrence. A look at the FIR will show that Madan Kumar named four persons in the FIR and also stated that there were two more persons. He stated that the FIR was lodged by him at the instance of Natthilal. We will later on deal with the question as to whether Natthilal was in a position to send him to lodge the report when we will deal with the question of dying declaration. It will suffice to say at present that in the FIR Ex. P 13, the name of Hamid All is not mentioned. Much importance should not be attached to this, because the FIR was not lodged by an eyewitness. Smt. Sushila was examined by the Investigating Officer immediately after the occurrence. She has clearly stated in the court that Hamid Ali is the brother-in-law of Fazal Khan. She also stated that Hamid All used to visit Dholpur and the sons of Fazal Khan used to address him as Mama. Fazal Khan is neighbour of Smt. Sushila and his brother-in-law was visiting him. Therefore, we see no reason to disbelieve her statement so far as the identity of accused Hamid Ali is concerned. That apart, Sannu (PW 5) who is a neighbour of Smt. Sushila and who had witnessed the occurrence, stated that Hamid All was also present at the time of occurrence and gave blow with his knife to Natthilal. Therefore, we see no reason to disbelieve her statement so far as the identity of accused Hamid Ali is concerned. That apart, Sannu (PW 5) who is a neighbour of Smt. Sushila and who had witnessed the occurrence, stated that Hamid All was also present at the time of occurrence and gave blow with his knife to Natthilal. Not a single question was put to him in the cross-examination so far as Hamid All is concerned. Therefore, the identity of Hamid All as one of the assailants of Natthilal is clearly established. Statement of Smt. Sushila (PW I) that the accused Fazat-Khan gave blow by knife on the thigh of Natthilal and other accused-appellant Hamid All gave blow by knife to Natthilal is corroborated by the statement of Sannu (PW 5). No doubt Sannu appears to be quite close to the family of Natthilal and Natthilal was supporting him in times of need, but on that account his statement cannot be disbelieved more so when he is a neighbour. His presence at the time of occurrence on the roof in the month of May, 1980 when persons generally sleep on their roofs, cannot be disbelieved. 11. Therefore, from the statement of Smt. Sushila (PW 1) and Sannu (PW 5) it is clearly established that both the accused-persons namely, Fazal Khan and Hamid Ali gave one blow each by knife to deceased Natthilal. But so far as statement of Smt. Sushila (PW 1) that accused Hamid Khan also gave lathi blow on the back of Natthilal is concerned it will not be safe to rely on her statement because it is not supported by the statement of Sannu (PW 5). Sannu (PW 5) has only stated that accused Hamid Khan along with others was seen giving fists blows to Natthilal. He does not State that Hamid Khan was armed with lathi or that he gave blows by lathi on the back of Natthilal. We have already referred to the statement of Dr. Mohanlal (PW 2) who has stated that the possibility of injury No. 1 on the back of Natthilal, which is a bruise, having been received by a fall cannot be excluded. We have already referred to the statement of Dr. Mohanlal (PW 2) who has stated that the possibility of injury No. 1 on the back of Natthilal, which is a bruise, having been received by a fall cannot be excluded. Thus, only on the testimony of Smt. Sushila, which is not supported by Sannu (PW 5) we do not consider it safe to hold that Hamid Khan is the author of injury No. 1 found on the dead body of Natthilal. To conclude, we hold that the two accused-persons, namely Fanl and Hamid Ali son of Wajid Ali caused injuries by knife to Natthilal. 12. So far as dying declaration alleged to have been made by Natthilal to PW 2 Ram Sanehi and Govind Ram, there is sufficient material on record that having received injuries and as a result of loss blood, Natthilal became unconscious. The dying declaration is said to have been made in the hospital at about 12.10 A.M. in the emergency ward. Dr. Mohanlal (PW 2) has stated that condition of Natthilal was serious. The patient was under the shock. He further stated that when he reached the hospital the patient was taken to the operation theatre. When he again reached the hospital in the morning of May 27, 1980, then also the patient was unconscious He also stated that on May 26, 1980, at about 11.30 p.m. blood was oozing from the wound of the thigh and the condition of Natthilal was serious. Even the blood pressure could not be measured. Therefore the patient was immediately taken to the operation theatre. Thus, Natthilal could not have been in a position to make the dying declaration from 11.30 p m. on May 26, 1980 till the morning hours of May 27, 1980. Ram Sanehi (PW 8) a compounder of Emergency Ward of the hospital has stated that he did not talk to Natthilal when he was admitted in the hospital and Natthilal talked only to Govind Ram. He (Ram Sanehi) was only bandaging the injuries of Natthilal and then he over-heard something. Natthilal was saying that Fazal Khan and Ham id All caused injuries with knives to him. He also named one more person. He stated that the condition of Natthilal was serious but still he was speaking. He was kept in the Emergency Ward for about 20 minutes and thereafter was sent to the ward. Natthilal was saying that Fazal Khan and Ham id All caused injuries with knives to him. He also named one more person. He stated that the condition of Natthilal was serious but still he was speaking. He was kept in the Emergency Ward for about 20 minutes and thereafter was sent to the ward. According to him, none enquired of Natthilal but of his own he was talking to Govind Ram. His statement was recorded by the police after 11/2 months from the date of occurrence. In the police statement Ex. P/4 he stated that on being asked by Govind Ram, Natthilal narrated the incident. Govind Ram (PW 10) is the real brother of Natthilal and as such he is an interested witness. According to his statement it was at about 11.15 p.m. that Fazal Khan etc. have caused injuries to Natthilal with their knives. He further states that Natthilal gave out that Hamid Ali gave blow with is knife on his buttock and Hamid Khan etc. gave lathi blow to him on his back. There are contradictions in the statements of both the witnesses. No reliance can be placed on the said evidence more so when there is evidence, as discussed above, that Natthilal was not conscious from 11.30 P.M. on May 26, till morning hours of May 27, 1980. So far as the dying declaration made to Investigating Officer Ramhet (PW 15) is concerned, it is in fact a statement under section 161 Cr. PC. It is said to have been recorded at about 12.10 A.M. We have already considered earlier that Natthilal was not conscious to make the said statement more so such a detailed statement. The Station House Officer did not record Ex. P 24 as a dying declaration and if he had done so, it was necessary for him to comply with rule 6.22 of the Rajasthan Police Rules. No reliance can be placed on this dying declaration. But even if the dying declaration is excluded, it can be said that the case against two accused-appellants namely Fazal Khan and Hamid Ali son of Wajid All has been satisfactorily proved and established and they caused injuries with the knife to Natthilal. No case against other two accused-appellants is made out. 13. The question arises as to what offence is made out against the appellants, whether it is under section 302 IPC or a lesser offence. No case against other two accused-appellants is made out. 13. The question arises as to what offence is made out against the appellants, whether it is under section 302 IPC or a lesser offence. The contention of the learned counsel for the appellants is that it has come in the statement of Dr. Mohanlal (PW 2) that only three injuries were found on the person of the deceased. Injury No. 3 has been ascribed to accused Fazal Khan, Dr. Mohanlal (PW 2) has also stated that it was just accidental that femoral vein was cut. He has also stated that had the femoral vein not been cut, the death would not have taken place. Under the circumstances, it cannot be said that the accused Fazal Khan intended to cause the death of Nathilal or to cause such bodily injury which was likely to cause his death. In Gokul Parashram Patti v. State of Maharashtra, AIR 1981 SC 1441 it has been held that when the solitary blow given by the accused to the deceased was on the left clavicle, a non-vital part and the accused did not know that the superior venacava would be cut as a result of that wound, the injury though sufficient in the ordinary course of nature to cause death was pot one intended by the accused. Thus to such a case illustration (c) to section 300 Thirdly was not attracted. Accordingly, the accused could be convicted not under section 302 but under section 304 Part II IPC. In the instant case it has come in evidence of eye-witnesses referred to earlier that when the blows were inflicted, Natthilal tried to ward off those blows and in that process injuries were caused on his buttock and thigh. Thus it cannot be said that the accused did intend to cause such injuries so as to cut the femoral vein. If the intention of the accused persons would have been to cause the death, they would not have stopped by giving cane blow each to the deceased Natthilal. The fact that they did not inflict further injuries leads to the inference that the intention of the accused was not to cause the death but to cause other injuries. Under the circumstances the case of accused Fazal falls under section 304 Part II IPC. The fact that they did not inflict further injuries leads to the inference that the intention of the accused was not to cause the death but to cause other injuries. Under the circumstances the case of accused Fazal falls under section 304 Part II IPC. The accused Fazal Khan and Hamid All are close relations and they came together to the house of Natthilal deceased and both were armed with knives. Therefore, it can be said that they had common intention to commit offence not amounting to murder. Therefore, accused Hamid All son of Wajid Ali is liable under section 304 Part II read with section 34 IPC. 14. In the result, this appeal partly succeeds. The conviction of the accused-appellant Fazal Khan is altered from section 302 IPC to that section 304 Part II. The conviction of accused Hamid Ali is altered from section 302 IPC to that under section 304 Part II read with section 34 IPC. Each of them is sentenced for the said offence to undergo rigorous imprisonment for six years. The judgment of the learned Additional Sessions Judge convicting accused Hamid Khan and Shehzad under section 302/149 and 147 IPC is set aside and they are acquitted of the charge under section 302/ 149 and 147 IPC. Accused-appellants Fazal Khan and Hamid All son of Wajid All are also acquitted of the charge under section 148 IPC. Accused Hamid Khan and Shehzad Khan are on bail. They need not surrender to their bail bonds. A copy of this judgment will he sent to the Central Jail, Jaipur.Appeal partly allowed. *******