JUDGMENT S. I. Jafri, J. 1. Appellant Ganesh and Nandni alias Nand Lal have filed their appeal against the order of conviction under Section 302/34 IPC and sentence of life imprisonment, recorded by Sri B. N. Mohiley, III Addl. Sessions Judge, Mirzapur, by his judgment and order dated 3-5-76. The appellant Ganesh had filed Criminal Appeal No. 1013 of 1977 against the aforesaid conviction and sentence whereas Nandni alias Nand Lal appellant had filed his appeal no. 1196 of 1977. Both the appeals were connected by the Court. 2. The case of the prosecution is that Shitalu deceased alongwith Banarsi PW 5 and Babu Lal, PW 7 had gone to deposit the electric dues in the Hydel Office situated in Mohalla Beltar near Dankeen Ganj, Mirzapur, on 24-7-74 at about 10 a. m. Babu Lal had deposited dues in the aforesaid Hydel Office which was in the name of his father and on the persuation of Babu Lal, his friends Shitalu and Banarsi had accompanied him. Alter the money was deposited in the Hydel Office, Babu Lal departed the company of Shitalu and Banarsi and left for his house, while Shitalu deceased and Banarsi were returning from the Hydel Office and when they had reached near Shiv Temple at about 10.30 a. m., the appellants met them. An alteration ensued between them and some grappling also took place between them. During that grappling, appellant Ganesh exhorted Nandni appellant to finish Shitalu, whereupon, Nandni alias Nand Lal, wipped out a country made pistol and fired at the deceased Shitalu. On receiving the shot, Shitalu fell down on the spot and the two appellants made good their escape. People were attracted to the scene of occurrence. Banarsi PW 5 took the injured Shitalu to Civil Hospital, Mirzapur where he was medically examined at 11. a. m. Thereafter, Banarsi went to the Police Station Katra and lodged the first information report of the occurrence, Ex. ka-2, naming the appellants as accused persons. Takeshwar Rai, Constable Clerk prepared the chick report at 11.50 a. m. (copy of the same is Ex. ka-5). On the basis of the aforesaid written report filed by Banarsi PW 4, he also registered a case in the General Diary under Section 307 IPC against the appellant. ka-2, naming the appellants as accused persons. Takeshwar Rai, Constable Clerk prepared the chick report at 11.50 a. m. (copy of the same is Ex. ka-5). On the basis of the aforesaid written report filed by Banarsi PW 4, he also registered a case in the General Diary under Section 307 IPC against the appellant. The injured was admitted in the Hospital and his dying declaration was recorded at 12.10 p. m. by Sri Rama Kant Dubey, Magistrate PW 1.0. The injured Shitalu was later on shifted to Shiva Prasad Civil Hospital, Varanasi, and there he remained under the treatment of the doctor for about a month or so and when his condition did not improve, he was brought back to Mirzapur by his relations where he succumbed to his injuries the next day of his arrival i. e.,on 17-11-1974. On the death of the injured Shitalu the police converted the aforesaid case from under section 307 IPC to under section 302 IPC, The S. I. concerned conducted the inquest on the dead body of Shitalu and sent the dead body for post mortem examination through constables in a sealed condition. 3. The injuries of Shitalu before the death were first examined at about 11 a. m. on 24-7-74 by Dr. S. R. Bhattacharya, PW 3, in the District Hospital Mirzapur. Dr. Bhattacharya found the following injuries on the person of the injured :- Lacerated wound 5 cm x 1 1/2 cm at the back in the middle on the spine. A plastic cap was present on the wound. Blackening and tatooing was present, no pellets were seen from outside. No wound of exit was also seen. The injury was directed from backward to down-wards and inwards. He had advised X-ray of spine and abdomen. According to the opinion of the doctor the duration of the injury was fresh and the cause was fire-arm shot. 4. Dr. G. D. Varanwal, conducted the autopsy on the dead body of the deceased on 18-11-1974 at 1.30 p. m. The doctor found the following ante- mortem injuries :- 1. Septic wound 5 cm x bone deep on back side over first, second and third lumber vertebrae. 2. Septic wound 13 cm x 21 cm x Bone deep over the back of hip and sacral region. 3. Septic wound 4 cm x 3 cm x muscle deep on the back of right hip joint. Septic wound 5 cm x bone deep on back side over first, second and third lumber vertebrae. 2. Septic wound 13 cm x 21 cm x Bone deep over the back of hip and sacral region. 3. Septic wound 4 cm x 3 cm x muscle deep on the back of right hip joint. On internal examination the first and the second lumber vertabraes were fractured and an irregular type cavity had been formed in the two vertabraes, and out of them four gun shots were recovered. Spinal cord was also severed at the leval of L 1 and L 2. One gun shot was also recovered which was lying at the level of 8th left cosutal cartilage 5 cm. left to midline. The doctor scaled five gun shots recovered from the dead body and returned it to the Police Superintendent. 5. According to the doctor the death was caused due to anaemia and septic infection of the wound causing Septic-anaemia and exhaustion prolonged suppuration. 6. Umesh Chandra Misra S. I. PW 9 took up the investigation of the case and recorded the statement of the first informant Banarsi at the police station and, thereafter, he reached the place of occurrence. He found blood on the spot and took in his possession unstained and blood stained earth and prepared recovery memo Ex. ka-8. He also found 3 ticklies ' on the spot and after taking them in possession prepared the recovery memo Ex. ka-9. He also prepared site-plan Ex. ka-10 and in which he had shown the place where he had found the blood. It was marked with letter 'A'. He went to the Civil Hospital. There he found Shitalu unconscious and he could not take his statement. Lateron, he went to the Hospital again on 25-7-84 and recorded the statement of Shitalu. True copy of the same is Ex. ka-11. After completing the investigation, he had submitted the charge sheet Ex. ka-13 under section 307 IPC on 13-8-74. He had also proved the statements of Misri PW 2, Banarsi PW 5 and Dangar PW 6 which were given under section 1.61 CrPC before him. Gauri Shanker, S. O. PW 17 after the death of Shitalu re-started the investigation from 20-11-1.974 under the orders of Circle Officer. The information about the death of Shitalu was given by Ganeshu PW 1. Gauri Shanker, S. O. PW 17 after the death of Shitalu re-started the investigation from 20-11-1.974 under the orders of Circle Officer. The information about the death of Shitalu was given by Ganeshu PW 1. the brother of the deceased, by filing an application on 17-11-1974 at the Police Station whereupon the inquest report on the dead body of the deceased was prepared by Rama Kant Dubey, S. I. of the said police station and on receipt of the post mortem report, the case u/Sec. 307 IPC was converted to one under section 302 IPC. Gauri Shanker Singh PW 17 after interrogating few witnesses submitted additional charge sheet against the appellants on 24-2-75 under section 302 IPC. The said charge sheet is Ex. ka-26. The inquest report prepared by R. K. Dubey, S. I. was also proved by Gauri Shanker Singh and the same was marked as Ex. ka-25. 7. The appellants pleaed not guilty to the charge and slated that they were falsely implicated in the case on account of enmity. However, they did not adduce any evidence. 8. In support of the case, the prosecution examined 21. witnesses in all and out of them Misri PW 2, Banarsi PW 5 and Dangar PW 6 were examined as eye-witnesses of the occurrence. Babu Lal PW 7 deposed about the payment of the electric dues on the date of occurrence at about 10 a, m. in the Hydel Office in the company of the deceased Shitalu and Banarsi PW 5. Ganeshu PW 1 and Ganga PW 8 are the brothers of the deceased who have deposed regarding the motive in this case. The prosecution has also examined Sri Rama Kant Dubey, PW 1.0 Magistrate I Class, Mirzapur who recorded the dying declaration of deceased Shitalu at 12.1.0 a.m. on 24-7-74 in the District Hospital, Mirzapur. He has stated that in his presence the doctor had given the fitness certificate and he, then, recorded the statement in question and answer form. He had taken all precautions and that no relation of the injured was present. He himself found the injured capable of giving answers coherently. He proved the dying declaration which is marked Ex. ka-14. 9. As stated above, the deceased Shitalu was examined on 24-7-74 at 11. a. m. in the District Hospital, Mirzapur by Dr. S. R. Bhattacharya. He had taken all precautions and that no relation of the injured was present. He himself found the injured capable of giving answers coherently. He proved the dying declaration which is marked Ex. ka-14. 9. As stated above, the deceased Shitalu was examined on 24-7-74 at 11. a. m. in the District Hospital, Mirzapur by Dr. S. R. Bhattacharya. AS the condition of Shitalu was percarious he was shifted to the Hospital at Banaras Hindu University. 11c was continuously treated in the said hospital but finding no improvement, he was, probably, at the instance of his relations taken from the B.H.U. Hospital to Mirzapur on 16-11.-1.974 where he expired the next day. The police was informed about the death of Shitalu and the postmortem of the deceased took place on 18-11-74. Four pellets were taken out from the body of the deceased and a case under section 302 was registered at the police station. 10. The prosecution has placed reliance on the Dying Declaration Ex. ka-14 which was recorded by the Magistrate I Class Mirzapur on 24-7-74 at about 12 a.m. within two hours of the occurrence. It is further proved by the evidence of Ganeshu PW 1 that he along with his brother Shitalu lived in the city of Mirzapur and the appellants had inimical terms with his brother Shitalu and also with other members of his family. He further stated that a day before the occurrence, i.e. on 23-7-74, he had lodged a report at the police station against the two appellants and also against Rama Shanker. He had filed the said report which is Ex. ka-1. Besides this, he had proved another report which he had lodged on 21-7-74 against the accused with the Superintendent of Police Mirzapur which is Ex. ka-2. In this report also, it is mentioned that he had filed report against the accused and others on 17-6-74. A case was also filed in the court by him against the appellants and others and consequently, on 19-7-74, the two appellants alongwith others raided his house at about 9.30 p. m. duly armed with Ballam and lathis and threatened him and his family members that unless he entered into a compromise with them in the near future, they would kill him and his family members. He has further stated that on the date of the occurrence Banarsi PW 5 had come to his house in the morning at about 9 a. m. and had taken his brother Shitalu with him at about 10 a. m. Thereafter he came to know that his brother Shitalu was attacked on the road and was being taken to the hospital. Consequently, he went to the hospital and found his brother in an injured condition. He has stated that even after 10 or 11 days when the condition of his brother did not improve, he took him to Varanasi where he was admitted in the Banaras Hindu University, Hospital. He was admitted there for some time and when his condition did not improve, he brought him back to Mirzapur where he expired the next day i.e. on 1.7-4-74. He has also narrated another instance of enmity with the appellants and their associates. He has stated that his another brother Chhunnu had a dispute with the appellants along with seven others and the appellants and his associates had caused gunshot injuries to him and a case was registered against the appellants. It is clear from the statement of Ganeshu PW 1 that he did not see the occurrence himself. He has narrated the enmity which existed between his family members and the appellants and their associates. 11. Misri PW 2 is mentioned in the FIR as an eye witness of the occurrence lodged by Banarsi Lal PW 5. He has stated that the assault on the deceased Shitalu took place at about 10 a. m. and he had seen the altercation going on between Shitalu in Mohalla Beltar. He had also seen Banarsi with Shitalu at that time. He had further stated that Shitalu sustained gun shot injuries there. He did not name Nandni appellant as one of the assailants and had confined his deposition only against Ganesh. The prosecution, therefore, with the permission of the Court declared him hostile and had put questions to him in cross-examination as according to the prosecution, he was won over by the accused appellant Nandni. He has admitted in his cross-examination that Dangar PW 6 was also in the company of the deceased at the time of the occurrence and he had himself seen the marpit between Ganesh appellant and Shitalu. He has admitted in his cross-examination that Dangar PW 6 was also in the company of the deceased at the time of the occurrence and he had himself seen the marpit between Ganesh appellant and Shitalu. But he had again denied the presence of Nandni appellant at the place of occurrence. It, therefore, appears that in order to save Nandni, he had intentionally omitted his name and the role played by him, in his statement before the trial court. He had also admitted in his evidence the place of occurrence as alleged by the prosecution. It is, therefore absolutely clear from his statement that he was present at the time of occurrence when the deceased Shitalu was fired at by Ganesh appellant. He is named in the FIR as an eyewitness and it is fully established from his evidence that the occurrence had taken place at the alleged time when Shitalu had received injuries at about 10.30 a. m. It is also abundantly clear from his evidence that PWs Banarsi and Dangar were also present at the time of the occurrence and they had also witnessed the occurrence. It appears that MISRI PW 2 had seen the occurrence he was won over by the accused Nandni. Therefore, he had deliberately omitted the name of one of the accused in his evidence before the trial Court. 12. Banarsi PW 5 had lodged the FIR at the Police Station at 11.50 a. m. within a short period of about one hour of the occurrence. As stated earlier he did not support the prosecution case and has been cross-examined by the prosecution. He has disowned his own writting of the FIR. He has stated in his evidence that on the date of occurrence, he, Shitalu deceased and Babu Lal PW 7 had gone to deposit the amount of electric bill at the Hydel Office which was in the name of Jawahir, the father of Babu Lal, PW 7 and the said bill was deposited at about 10.30 a, m. and, thereafter, Babu Lal had left their company and he proceeded towards Mukeri Bazar. He further added that when he had reached near the temple of Shivji in the company of Shitalu, he heard a gun shot and Shitalu fell down but he did not see the person who had fired at him. He further added that when he had reached near the temple of Shivji in the company of Shitalu, he heard a gun shot and Shitalu fell down but he did not see the person who had fired at him. In cross-examination by the prosecution, he had admitted that Shitalu had received gun shot injuries and there was bleeding on the spot. He also stated that the person who had fired shots had come from the side and as a number of persons had collected there, he could not see the assailants. He had again specifically stated in cross-examination that he did not see the two appellants at the time of the occurrence. However, he conceded that he and Dangar PW 6 had taken Shitalu to the Civil Hospital and had lodged the report at the police station. When he was confronted with the story given in the FIR, he explained that he wrote the facts in the FIR as people had told him and he was also much upset at that time. He had gone further by saying that Ganeshu, the brother of the injured Shitalu had instructed him to name the appellants and he had as such obliged him. He had admitted and proved his writing on the said first information, Ex. ka 7. After having considered his evidence very carefully, we feel that he was also won over by the appellants and it was only to help them that he did not support the prosecution case in toto. The contents of the FIR are fully corroborated from the Dying Declaration Ex. ka 1.4 of the injured Shitalu which was recorded shortly after the occurrence by Sri Rama Kant Dubey PW 10 Magistrate I Class, and we are also of the view that Ganeshu had not dictated the FIR to BANARSI but BANARSI had himself scribed it in the hospital on the basis of his own observation of the occurrence and he handed over at the Police Station to clerk constable Takeshwar Rai, naming both the appellants as the accused and Takeshwar Rai had prepared the chick report Ex. ka 5 immediately at 11.50 a. m. on the basis of the FIR Ex. ka 7, lodged by Banarsi PW 5. Danger PW 6 also did not support the prosecution case in full. ka 5 immediately at 11.50 a. m. on the basis of the FIR Ex. ka 7, lodged by Banarsi PW 5. Danger PW 6 also did not support the prosecution case in full. He has also stated that Shitalu had received gun shot injury at the place of the occurrence while he was going to purchase Khoya in the company of Misri and when he reached near the temple of Shivaji, Banarsi, PW 5 was standing by his side but he did not see the assailants. After carefully examining his evidence, we are fully satisfied that this witness has also deliberately made a false statement in order to help the appellants. He had gone to the extent of denying the fact of accompanying the injured to the hospital which Banarsi, PW 5 had admitted in his evidence. He therefore, also clearly appears to have been won over by the accused persons. 13. Babu Lal PW 7 supported the prosecution version to this extent that he had gone to deposit the amount of the electric bill in the company of Banars PW 5 and Shitalu. He stated that after depositing the bill between 10 to 10.15 a. m. in Mohalla Beltar, he himself proceeded towards Mukeri Bazar ant Banarsi and Shitalu went towards another direction. He was cross-examined by the defence but nothing material has come out in his statement which may discredit him. His testimony clearly supports the prosecution story that Banars was throughout in the company of Shiatlu and both of them had left his company after depositing the amount of the bill. Therefore, Banarsi, PW 5 had full opportunity to see the occurrence and to recognise the assailants. The occurrence took place during the day time and, therefore, there could not been any question of confusion about the identity of the assailants by the deceased No doubt, Banarsi turned hostile and did not name the appellants in his evidence but the statement of BABU Lal PW 7 clearly establishes that Banarsi PW 5 and Shitalu had accommpanied upto the Hydel Office at about 10 or 10.1.5 a. m and he had proceeded towards Mukeri Bazar after depositing the amount of bill and left the company of Banarsi and Shitalu. Therefore, the time of occurrence given in the FIR is correct and cannot be doubted as it is full) corroborated by the evidence of this witness. Therefore, the time of occurrence given in the FIR is correct and cannot be doubted as it is full) corroborated by the evidence of this witness. His evidence also is corroborated by the Dying Declaration of the deceased to the extent that the deceased had also gone with Banarsi, PW 5 and BABU Lal PW 7 to deposit the amount of the electric bill at the Hydel Office at about 10 a. m. 14. Ganga PW 8 is another brother of Shitalu deceased. He has narrated the enmity existing between his family and the appellants. He had also stated that a case is also pending against the appellants and seven others. He further stated that he on hearing the assault on his brother went to the hospital shortly after the occurrence where his brother Shitalu had told him that Nandni and Ganesh had attacked him. He had further stated that Banarsi had scribed the report and lodged the same at the police station. No doubt, he is not an eye witness of the occurrence but his statement is relevant to the extent that the deceased Shitalu had told him in the hospital shortly after the occurrence that the appellants had assaulted him and he was fired at by a country made pistol by one of them. He was cross-examined by the defence but nothing substantial has come out in his evidence in favour of the appellants. His evidence also gets ample corroboration from the Dying Declaration of the deceased by the Magistrate shortly after the occurrence in the hospital. Umesh Chandra Misra PW 9 had investigated this case. He had interrogated the witnesses Banarsi and others and also found blood marks on the spot and had taken samples of blood stained and simple earth from the place of the occurrence. He has found 3 ticklies and prepared Memo Ex. ka 9. He also prepared the site plan Ex. ka.10 of the place of occurrence and he had shown the place where he found blood by letter (A) in the site plan. He stated that he visited the hospital on the day of the occurrence but he could not record the statement of Shitalu as he was unconscious. ka 9. He also prepared the site plan Ex. ka.10 of the place of occurrence and he had shown the place where he found blood by letter (A) in the site plan. He stated that he visited the hospital on the day of the occurrence but he could not record the statement of Shitalu as he was unconscious. He, then, stated that subsequently he remained busy in the search of the accused persons and he could record the statement of Shitalu deceased in the hospital on 25-7-74 copy of the said statement of Shitalu is Ex. ka 11. After completing the investigation he has submitted the charge-sheet against the appellants. 15. Rama Kant Dubey, Magistrate, I Class Mirzapur has recorded the Dying Declaration of the deceased Shitalu on 24-7-74 at 12.10 p. m. in the District Hospital, Mirzapur. 16. The said dying declaration recorded is quoted below : We are fully satisfied that Shitalu deceased had given a true account of the occurrence in his Dying Declaration recorded by Sri Rama Kant Dubey, Magistrate, I Class, Mirzapur PW 10 shortly after the occurrence in the hospital. The dying declaration has clearly named both the appellants. There is no infirmity in the statement of Shitalu deceased to discredit his testimony. It is a day-light occurrence and Shitalu deceased must have seen the culprits. The dying declaration has been made voluntarily before the Magistrate without any external aid and the injured was fully conscious to answer questions put to him by the Magistrate according to the certificate of fitness given by the doctor. This statement of the deceased can be relied upon even without corroboration by any other evidence though in this case there is ample evidence on record which corroborates the dying declaration to a great extent as stated above. Some minor infirmities were pointed out by the learned counsel for the appellants in the dying declaration of Shitalu deceased. These infirmities are of a very minor nature and do not in any way discredit the value of the dying declaration. It was pointed but by the learned counsel for the appellants that in the FIR there was no mention of the fact that Ganesh appellant had a gun in his hand but the deceased had stated that both the appellants has guns and only Nandni accused fired at him. It was pointed but by the learned counsel for the appellants that in the FIR there was no mention of the fact that Ganesh appellant had a gun in his hand but the deceased had stated that both the appellants has guns and only Nandni accused fired at him. Therefore, it appears that there was no confusion in the mind of Shitalu deceased about the identity of the appellants who had actually fired and, Shitalu had clearly stated that only one shot v\ as fired and that shot was fired by Nandni. The infirmity, therefore, has no impact on the dying declaration as a whole and' it simply speaks about the perturbed state of mind of the deceased. The dying declaration also finds support from the statement of Ganga, PW 8 who is the brother of Shitalu, deceased. Ganga has stated that on hearing the assault on his brother he reached the hospital shortly after the occurrence where he was told by him that Nandni and Ganesh had attacked him. 17. Umesh Chandra Misra, PW 9 the Investigating Officer had also recorded the statement of the deceased Shitalu next day of the occurrence i. e.on 25-7-74 in the District Hospital, Mirzapur. The statement of Shitalu has been proved as Dying Declaration Ex. ka 8. The said statement is quoted below : 18. The learned counsel for the appellant has vehemently argued that the two statements of the deceased i.e. one recorded by Sri Rama Kant Dubey, Magistrate I Class Mirzapur, PW 1.0 Ex." ka 14, and the other Ex. ka 8 recorded by the Investigating Officer, Umesh Chandra Misra, PW 8 are inconsistent. Therefore, none of the statements deserve to be relied upon. The learned counsel for the appellant has pointed out the following discrepancies in the two dying declarations :- Dying Declaration recorded by the Dying Declaration recorded by the Magistrate I Class Mirzapur on Investigating Officer, Mirzapur on 24.07.74 25.7.74 1. Place appears to be the office 1. Place is on the road near Shiv where the electric bill was being Mandir, Beltar. deposited. 2. It is stated that both accused 2. Only Nandni was armed were armed with guns. with country made pistol and Ganesh was unarmed. 3. No scuffle took place prior to 3. A scuffle took place between shooting. Ganesh and deceased. 4. It was after receiving gunshot 4. deposited. 2. It is stated that both accused 2. Only Nandni was armed were armed with guns. with country made pistol and Ganesh was unarmed. 3. No scuffle took place prior to 3. A scuffle took place between shooting. Ganesh and deceased. 4. It was after receiving gunshot 4. The deceased on seeing injury that deceased turned round The pistol turned round and and saw accused running. tried to run and was shot at. It may be noted that in the above two Dying declarations both the appellants are named by the deceased Shitalu. There appears to be no material inconsistency regarding the place of occurrence as according to the site plan, the office of the Electricity where the bill was deposited and the Shiv Mandir are very close to each other, lying on the same side of the road. In the Dying Declaration recorded by the Magistrate, Shitalu deceased had stated that both the appellants were armed with guns whereas in the Dying Declaration recorded by the Investigating Officer, Nandni was said to have been armed with a pistol and Ganesh was unarmed. It may be noted that the Dying Declaration recorded by the learned Magistrate was within two hours of the occurrence in the District Hospital on 24-7-74. The deceased had specifically stated that Nandni had fired on him. In the statement recorded by the Investigating Officer Shitalu has also named both the accused and has stated that Nandni has fired at him by a pistol whereas he did not state about the arm with which Ganesh was armed. It may be noted that country made pistols sometimes have a long barrel with a long but looking like short guns. Therefore if Shitalu had stated pistol before the Investigating Officer instead of a gun in the hand of Nandni it cannot be taken as a material infirmity to discredit the dying declarations. 19. The other inconsistency pointed out by the learned counsel for the appellants between the two dying declarations. Therefore if Shitalu had stated pistol before the Investigating Officer instead of a gun in the hand of Nandni it cannot be taken as a material infirmity to discredit the dying declarations. 19. The other inconsistency pointed out by the learned counsel for the appellants between the two dying declarations. That the deceased had stated in the Dying Declaration recorded before the Magistrate that both the appellants were armed with guns and Nandni had fired on him, whereas in the Dying Declaration recorded by the Investigating Officer on the next day of the occurrence, the deceased had stated that the appellant Nandni was armed with a country made pistol who had fired at him and he did not mention about the arm of Ganesh. The inconsistency pointed out by the learned counsel for the defence is of a trivial nature and it does not adversely affect the two Dying Declarations. 20. Thirdly, it was pointed out by the learned counsel for the appellants that the deceased bad not stated that any scuffle took place prior to the shooting incident in his statement recorded by the Magistrate whereas he has stated before the Investigating Officer that some scuffle took place between Ganesh and the deceased prior to the assault. This inconsistency is also of not much significance and it did not materially effect the basic intrinsic value of the dying declarations of the deceased recorded by the learned Magistrate and the investigating officer. Lastly, it was pointed out that the deceased had stated before the learned Magistrate that on receiving the gun shot injury, he turned round and had seen the accused running away from the place of occurrence, whereas he had stated before the Investigating Officer that on seeing the pistol, he had turned round and he tried to escape but he was hit at by Nandni appellant. In our view there is no material inconsistency between the two statements. 21. We have given our utmost consideration to the facts and circumstances of the case and we are fully satisfied that there is no material inconsistency between the two Dying Declarations of the deceased. The dying declaration recorded by the learned Magistrate within few hours of the occurrence inspires full confidence wherein the deceased has given a true version of the occurrence. The dying declaration recorded by the learned Magistrate within few hours of the occurrence inspires full confidence wherein the deceased has given a true version of the occurrence. Likewise, the Dying Declaration recorded by the Investigating Officer on the next day of the occurrence also corroborates the Dying Declaration of the deceased recorded by the learned Magistrate in material particulars. Both the appellants are named in the Dying Declarations and the appellant Nandani is said to have fired at the deceased in both the Dying Declarations. 22. We have very carefully examined the Dying Declaration Ex. ka 14 and we come to an irresistible conclusion that the deceased bad given a true version of the occurrence before the learned Magistrate Sri Rama Kant Dubey, PW 10 who recorded his statement. There is also a certificate given by Dr. S. R. Bhattacharya PW 3 that the deceased was in a fit condition to make the statement. Therefore, we hold that the deceased gave a natural and truthful version as to the circumstances of his death and to his assailants before the Magistrate without any tutoring or coaching within few hours of the occurrence. Even if there are some conflict of a minor nature between the Dying Declaration recorded by a Magistrate and the Investigating Officer during the course of investigating u/Sec.161 CrPC, the Dying Declaration recorded by the learned Magistrate at the earliest opportunity stands on a much higher footing than of the statement recorded by the Investigating Officer and it also inspires confidence and in such a situation precedence and reliance must be given to the dying declaration recorded by the learned Magistrate at the earliest opportunity. Lastly, it was contended by the learned counsel for the appellant that even if the entire case is believed, the offence against the appellants would not go beyond the ambit of section 304 IPC as the cause of death was shock and anaemia due to septic infection of the wound. The deceased has also survived for a considerable long period of four months and the death was not as such a direct result of the injury sustained by the deceased. Dr. G. D. Baranwal, PW 1.1 who conducted the autopsy on the dead body of the deceased has stated in his evidence that the cause of death was injury no. The deceased has also survived for a considerable long period of four months and the death was not as such a direct result of the injury sustained by the deceased. Dr. G. D. Baranwal, PW 1.1 who conducted the autopsy on the dead body of the deceased has stated in his evidence that the cause of death was injury no. 1 of the deceased which he had found at the time of the post mortem examination. The said injury was in the nature of the wound 5 cm x 4 cm x bone deep in the back side of 1st, 2nd and 3rd vertebrae. The said septic had developed on account of prolonged illness and as a result of non inextricability of the pellets which had entered into the spine of the deceased. The doctor found that the first and the second injuries of the deceased were fractured and irregular type of cavity was found between the two injuries and even though he had taken out four gun shots. Not only that spinal cord was also cut at this level but one gun shot was recorded under the skin of the 8th left coastal cartilage. From the above statement of the doctor, it is apparent that the doctor was of the opinion that if the injury no. 1, would not have been caused by the gun fire, there was no question of septic being developed in the wound itself. Moreover, the evidence of the doctor suggests that pellets had gone very deep inside the wound and it was very difficult for the Surgeon or the Doctor who had treated him to extricate such pellets without the risk of the life of the deceased. It may further be noted that regarding the septic formation, the Doctor has stated that if any foreign material remains inside the body for a long time, then, septic is developed. 23. The injured was admitted in the Hospital at Mirzapur and on the very date of his admission his condition was quite serious. Lateron, he was shifted to the District Hospital Varanasi by the Hospital authorities of Mirzapur as his condition was not improving. The injured remained in the hospital upto 16-11-1974 and when the relations of the deceased lost all hopes for the survival of the life of the deceased, the deceased was brought back to Mirzapur where he expired on 7th November 1974. The injured remained in the hospital upto 16-11-1974 and when the relations of the deceased lost all hopes for the survival of the life of the deceased, the deceased was brought back to Mirzapur where he expired on 7th November 1974. The bed-head-ticket of the deceased was also placed on the record and it clearly shows that proper treatment was given to him in the hospital at Varanasi. There is no evidence to show that any carelessness was shown to the injured in the hospital at Mirzapur and Varanasi. We, therefore, hold that the deceased had ultimately succumbed to his injuries on account of the firing done by Nandni appellant and therefore, the offence committed by the appellants squarely comes within the ambit of Section 300 IPC and the trial court has rightly convicted the appellants under section 302/34 IPC. 24. As regards the motive of attack on the deceased is concerned, it is abundantly clear from the Dying Declaration Ex. ka 14 and the statements of Ganga PW 8 and Ganesh PW 1 the brothers of the deceased that there was deep seated enmity between the deceased and the family members on the one hand and the appellants and their associates on the other. Shitalu deceased was beaten by the friends of the appellants two days before the occurrence and if the deceased had intended to implicate his enemies falsely, he would have named the appellants alongwith others also but he did not do so and had named only the appellants who were actually concerned with the assault on him. The weapon used by the appellants for causing injuries to the deceased clearly suggests that the appellants had decided to kill the deceased and for that reason Nandni appellant had fired a shot from a close range with the fire- arm on the deceased which ultimately resulted in his death. We have fully considered the evidence adduced in this case and we come to irresistible conclusion that the prosecution has fully proved its case against both the appellants beyond any reasonable doubt. The order of the learned Sessions Judge convicting and sentencing the appellants is upheld. 25. In the result, both the appeals are dismissed and the order of conviction and sentence recorded by the trial court is affirmed. The appellants are on bill. They shall be taken into custody forthwith to serve out the sentence. Appeals dismissed.