H. C. MITAL, J. ( 1 ) THE above named appellant have preferred this appeal against the judgment dated 13. 4. 78 passed by Shri Vikram Singh, Sessions Judge, Saharanpur convicting both the appellants under section 302 I. P. C as well as section 307 I. P. C. both read with section 34 I. P. C. and sentencing them to life imprisonment and ten years R. I. respectively for the offence Both the sentences have been ordered to run concurrently. ( 2 ) JAI Prakash (P. W. 1) Om Prakash (P. W. 2) Sunder (P. W. 3) and Ghanshyam (deceased) were all real brothers and were residents of Mohalla Chowk Kaharan P. S. Kotwali district Saharanpur. It is alleged that on 7. 8. 77 at about 10. 15 a. m. in Mohalla Kaharan P. S. a mar pit had taken place wherein both Ghanshyam (deceased) and Sunder (P W. 3) had received injuries. A report about which was lodged by am Prakash (P W. 2) at t 1. 00 a. m. wherein both these appellants Ishwar Chand and Toni as well as Babboo, Vishnu and Manga were named. Vishnu was apprehended in the evening by the police on the same day. On 7. 8. 1977 at about 10 p. m. Jai Prakash (P. W. 1) had gone to take milk for the injured Ghanshyam and Sunder at some distance from the house when Door the shop of one Radha Kishan, both these appellants Ishwar Chand and Toni along with Babboo and Ram Kishan armed with knives came out behind the shop of Radha Krishan and challenged that in the morning he had lodged report in the Kotwali against them and got Vishnu apprehended and that they would teach him a lesson. Thereafter they attacked him with knives. On hearing his cries Ghanshyam his brother Om Prakash and Sunder also rushed to the place of occurrence. Ghanshyam intervened with the result that he was also attacked and received injuries with knife and then the accused made good their escape. ( 3 ) A first information report of the occurrence was lodged immediately thereafter at 11 a. m. by Om Prakash (P. W. 2) under section 307 I. P. C. on the basis of which a case was registered. Ghanshyam was taken by his brother Sunder (P. W. 3) to the hospital. ( 3 ) A first information report of the occurrence was lodged immediately thereafter at 11 a. m. by Om Prakash (P. W. 2) under section 307 I. P. C. on the basis of which a case was registered. Ghanshyam was taken by his brother Sunder (P. W. 3) to the hospital. Jai Prakash (P. W. 1) was also sent there from the police station. ( 4 ) DR. R. A. Goyal (P. W. 4) examined the injuries of both the injured at the district Hospital from 11 p. m. to 11. 45 p. m. and noted the following injuries on their persons; The following injuries were found upon the person of Ghanshyam deceased in his medical examination 1. Incised wound 3/4 cm. x 1/4 cm. x skin deep on the front of the sternum 6 cms; away from the right nipple in 3 oclock position. 2. Incised wound 2 cm. x 1/2 cm. x depth not probed on the left side of the back and in the middle 3 cms. from the mid line. 3. Incised wound 1. 5 cm. x 0. 5 cm. x depth not probed on the left side of the back. 4 cms. from the mid line and 17 cms. below the root of the neck. 4. Incised wound 1. 5 cm. x 0. 5 cm. x depth not probed on the right side of the back 3 cms. away from mid line just opposite injury No. 3. There was bleeding from all the four injuries which were fresh at the time of medical examination. Injury No. 2 was simple and injuries Nos. 2 to 4 were kept under observation. The injuries had been caused by some sharp edged weapon like a knife. Ghanshyam deceased was admitted in the hospital and was referred to the Surgeon for treatment as he was semi-conscious and his general condition was low. He had other injuries upon his person which had already been examined earlier. The following injuries were found upon the person of Jai Prakash:1. Incised wound 1. 5 cm. x 5cm. x depth not probed on the right side of the umblious. 2. Incised wound 2 cm. x 1 cm. x depth not probed on the left side of the back and in the middle and 3 cms from the midline. There was bleeding from both the injuries which were fresh at the time of medical examination. 5 cm. x 5cm. x depth not probed on the right side of the umblious. 2. Incised wound 2 cm. x 1 cm. x depth not probed on the left side of the back and in the middle and 3 cms from the midline. There was bleeding from both the injuries which were fresh at the time of medical examination. Both the injuries were kept under observation. and were caused by some sharp edged weapon like a knife. General condition of Jai Prakash was low and he too was admitted in the hospital for medical treatment. ( 5 ) GHANSHYAM however died in the hospital at 9. 50 p. m. on 12. 8. 77 but before that his dying declaration was recorded by Sri D. S. Verma, City Magistrate (P. W. 5 ). The Investigating Officer Sub-Inspector, Prahlad Singh also recorded the statement of Ghanshyam and of Jai Prakash. After the death of Ghanshyam the case under section 307 I. P. C. was converted into one under section 302 I. P. C. Panchayatnama was prepared, dead body was sent for post mortem and after completion of investigation charge-sheet Ex. Ka. 20 was submitted by the Sub-Inspector Prahlad Singh against the four accused who were tried by the learned court below. ( 6 ) TO prove its case the prosecution examined nine witnesses viz. Jai Prakash (P. W. 1 ). Om Prakash (P. W. 2) and Sunder (P. W. 3) as the eye witnesses of the occurrence and they fully corroborated the prosecution case. Dr. R. A. Goyal (P. W. 4) had proved the injuries of the deceased as well as Injured Jai Prakash as be had noted on 7. 8. 77. Sri D. S. Verma; (P. W. 5) City Magistrate who had recorded the dying declaration (Ex. Ka. 6) of the deceased proved the same. Dr. M. L. Dhar (P. W. 6) had done the post mortem examination on the dead body of the deceased on 13. 8. 77 at 3. 40 p. m. In the opinion of the doctor the death was caused as a result of ante mortem injuries found upon the dead body of Ghanshyam. Ram Gopal (P. W. 7) and Mahipal Sharma (P. W. 8) are the formal witnesses and S. I. Prahlad Singh (P. W. 9 ). The Investigating Officer has deposed about the various steps taken by him in the course of the investigation. Ram Gopal (P. W. 7) and Mahipal Sharma (P. W. 8) are the formal witnesses and S. I. Prahlad Singh (P. W. 9 ). The Investigating Officer has deposed about the various steps taken by him in the course of the investigation. ( 7 ) THE version of the accused was a total denial and that they had been falsely implicated because of the morning incident, wherein they were also falsely named. The prosecution witnesses found favour with the learned Sessions Judge but in his view from that prosecution witness guilt only against the appellants Ishwar Chand and Tony had been proved. They were therefore sent under section 302 I. P. C. as well as section 301 I. P. C. both read with section 34 I. P. C. and were convicted. , Feeling aggrieved the appellants have filed the present appeal. ( 8 ) THE factum of the occurrence dated 17th August, 1977 at about 10. 00 p. m. , wherein both Ghanshyam (deceased) and Jai Prakash (P. W. 1) had received injuries near the house of the complainant has been proved by the testimony of the prosecution witnesses and the same has also not been challenged. The main charge against the prosecution evidence in this appeal is that the injured, Jai Prakash, (P. W. 1) and, the deceased, Ghanshyam, had received injuries at the hands of some unknown persons and not at the hands of the appellants; that there was no light at the scene of occurrence and, therefore, the prosecution witnesses could not clearly see the faces of the assailants. It is also urged that the prosecution evidence comprised or only three brothers of the deceased and who are highly interested persons and that the dying declaration of the deceased. Ghanshyam also did not inspire credence therefore, conviction of the appellants should not be sustained. ( 9 ) ON behalf of the prosecution, eyewitness testimony comprises of P. W. 1, Jai Prakash, the injured P. W. 2, Om Prakash and P. W. 3, Sunder. They are all real brothers. Besides tae eye-witness account of these three witnesses as stated above, there are also two dying declarations of Ghanshyam deceased one recorded by the Investigating Officer and the other by the City Magistrate. To appreciate the veracity of the prosecution evidence it is essential to first consider whether there was any light at the scene of the occurrence. Besides tae eye-witness account of these three witnesses as stated above, there are also two dying declarations of Ghanshyam deceased one recorded by the Investigating Officer and the other by the City Magistrate. To appreciate the veracity of the prosecution evidence it is essential to first consider whether there was any light at the scene of the occurrence. Two of these prosecution witnesses, namely. P. W. 1 Jai Prakash and P. W. 2, Om Prakash, have deposed that there was electric tube light on the pole at the scene of the occurrence. The 1. 0, P. W. 9, Sri. Prahlad Singh, had leached the scene of occurrence in the morning at 7. 30 a. m. and had inspected the scene of occurrence and prepared Ex. Ka. 14 site map. He has specifically deposed that at 6 paces from the place from where he had recovered blood there was an electric pole with an electric tube (red ). In the site map. Ex. Ka. 14, he has shown that portion by letter C. To neither of the prosecution eyewitnesses it was suggested in the cross-examination that there was no tight of the electric tube close to the scene of the occurrence. It was only put to P. W. 1, Jai Prakash, that it was a dark night as it was raining at that time. The witness stated that it was drizzling and not raining, His statement that there was light of 1 electric tube stands uncontroverted. To Om Prakash (P. W. 2) it was not even suggested in the cross-examination that it was dark or that there was no light. In his cross-examination in para 4 he has also specifically stated at page 30 that there was light at a distance 5, 6 paces. To the Investigating Officer also it was not suggested that there was no electric pole with an electric tube near the scene of the occurrence as shown in the site plan. To both these appellants it was specifically put in their statements under section 113 Cr. P. C. that there was electric light at the scene of occurrence of the electric tube. Both of them expressed ignorance to the existence of that light and did not deny that it was there. To both these appellants it was specifically put in their statements under section 113 Cr. P. C. that there was electric light at the scene of occurrence of the electric tube. Both of them expressed ignorance to the existence of that light and did not deny that it was there. As such it cannot be doubted that there was sufficient light of the electric tube of the pole very close to the scene of occurrence to enable the witnesses to clearly see the faces of the assailants. ( 10 ) THE next point of consideration is, whether the prosecution eye-witnesses were present at the scene of the occurrence. P. W. 1 Jai Prakash had received two incised wounds and his injuries were examined on, the same night at 11. 45 p. m. Hence, his presence at the Scene of the occurrence cannot be doubted. Moreover, on behalf of the defence also the same has not been challenged. P. W. 2, OmPrakash has stated that he was at the house. Jai Prakash had gone out to take milk at about 10. 00 p. m. and immediately thereafter he raised an alarm on hearing which he came out of his room. Ghanshyam had also gone out of the room and was about 3-4 paces ahead of him. He saw that accused Babboo. Ram Kishan, Ishwar and Toni were assaulting Jai Prakash and Ghanshyam. Thereafter report of the occurrence was got prepared by him though Om Prakash Press-wala and was submitted at the police station. In his cross-examination he stated that in fact Jai Prakash was narrating about the facts when the report was being written and he was, accordingly, getting it scribed through Om Prakash Press-Wala. That in the report it was wrongly written that Jai Prakash was returning after taking milk that he tried to intervene but the accused were armed with knives and therefore, he got frightened. He denied that he had not seen the occurrence and had not judge the report at that time there is nothing in his cross-examination to create any doubt regarding his presence at his house at that time. Normally also he was expected to be in his house at 10 p. m. In the site plan Ex. Ka 14 house of Om Prakash has been shown to be very close to the scene of occurrence. Normally also he was expected to be in his house at 10 p. m. In the site plan Ex. Ka 14 house of Om Prakash has been shown to be very close to the scene of occurrence. In fact there is no other house between his house and the scene of occurrence. Hence, his version that he had heard the cries of Jai Prakash and thereafter he had gone out of his house appears very probable and there is no reason to doubt the same particularly when Jai Prakash (P. W. 1) has also deposed that when he was surrounded and attacked by the accused, he raised an alarm which was quite natural, and hearing which Ghanshyam deceased came out and Om Prakash followed him. He has also stated that Om Prakash was also empty-handed. P. W. 3, Sunder is also the brother of the deceased and Jai Prakash and he has deposed that at the time of the occurrence he and Ghanshyam were lying in the same room on two cots as both had been injured in the morning incident; that Om Prakash, P. W. 2, was in his dwelling room; that he went out of the roam after the incident and before that Jai Prakash had gone to take milk. He had further stated that he had heard the alarm raised by Jai Prakash and Om Prakash. He had also seen that Ghanshyam had gone out of the house that first Jai Prakash had raised the alarm on hearing which Ghanshyam had gone out and Om Prakash had followed him. Thus, in fact he had not seen the occurrence and has specifically admitted in para 3 of his cross-examination that by the time he reached there the assailants had escaped. He had carried Ghanshyam to the hospital and Ghanshyam was examined at 11. 00 p. m. in the hospital on the same day, which is confirmed by Ex. Ka 4. The injuries of Ghanshyam were noted by Dr. R. A. Goyal at the District Hospital. On behalf of the appellant of the appellants it was also pointed out that Jai Prakash, P. W. 2, in his dying declaration recorded by the City Magistrate had not stated about the presence of Om Prakash and a specific question was put to Jai Prakash in his cross-examination. Jai Prakash has, however, explained that be might have missed it. On behalf of the appellant of the appellants it was also pointed out that Jai Prakash, P. W. 2, in his dying declaration recorded by the City Magistrate had not stated about the presence of Om Prakash and a specific question was put to Jai Prakash in his cross-examination. Jai Prakash has, however, explained that be might have missed it. There was nothing unusual or unnatural if he missed the name of Om Prakash because on the dying declaration-normally they names of the assailants are given which are enquired by the person recording the statement. Thus, presence of P. W. 2 Om Prakash at the scene of occurrence should not be doubted and the presence of Sunder having reached there immediately there rafter also stands established. Both P. W. 1 Jai Prakash and P. W. 2 Om, Prakash have named all the four accused viz. Ram Krishna, Tony, Ishwar and Baboo; However both Jai Prakash, (P. W. 1) as well as Ghanshyam in his dying declaration had stated that only Ishwar Chand and Tony had inflicted the knife blow and therefore the learned Court below bas only convicted these two appellants and have acquitted Ram Kishan and Baboo. ( 11 ) ON behalf of the appellants it was urged that the testimony of Jai Prakash, P. W. 1, is not free from suspicion as in the F. I. R. which admittedly was written on his narration, it was mentioned that all the accused had inflicted the knife injuries. When he was confronted with that part of the F. I. R. he stated that though he had then so stated but in fact all the four accused had not inflicted the knife blows. He was also confronted with his statement under section 161 Cr. P. C. that he had named all the four accused who had inflicted knife blows to him. Jai Prakash admitted that he might have made that statement. As there were four assailants, two of them had actually inflicted knife blows to Ghanshyam and Jai Prakash. The testimony of Jai Prakash should not be discarded simply because out of four assailants he has specifically mentioned two who had inflicted knife blows to him. Jai Prakash admitted that he might have made that statement. As there were four assailants, two of them had actually inflicted knife blows to Ghanshyam and Jai Prakash. The testimony of Jai Prakash should not be discarded simply because out of four assailants he has specifically mentioned two who had inflicted knife blows to him. According to Jai Prakash only these two appellants Ishwar Chand and Tony had also inflicted knife blows to his brother Ghanshyam though be has stated that after causing him injuries all the four appellants had fallen on Ghanshyam. In his dying declaration recorded by the City Magistrate he has however stated that Ram Kishan also had given a knife blow on Ghanshyam and when Jai Prakash was confronted with that part of his statement, he admitted to have so stated but stated that he was not feeling well at that time and in that condition he had made that statement. Thus, after a close. scrutiny of the testimony of P. W. 1 Jai Prakash we do not find any thing which might raise any reasonable, suspicion about the credibility of his testimony that both these appellants had inflicted the knife blows to him, as well as to his brother Ghanshyam deceased. ( 12 ) AS regards the testimony of Om Prakash P. W. 2 learned counsel for the defence could not point out any such infirmity which might militate anything against his testimony. However regarding the testimony of P. W. 3 Sunder it was pointed out that though according to his testimony he had not witnessed the occurrence, but he has admitted in his cross-examination that when he reached the scene of occurrence, the assailants had escaped. Many Mohalla-people had gathered and to a Court question he admitted that people were naming the assailants but to the doctor while getting Ghanshyam admitted in the hospital he did not mention the names of the appellants as assailants, as in the injury report (Ex. Ka 4) of Ghanshyam, P. W. 4 Dr. R. A. Goyal had noted alleged to have got injury by some one. P. W. 4 Dr. R. A. Goyals attention was specifically drawn to his this note in his cross-examination and it was put to him why he had made that note, thereupon Dr. Ka 4) of Ghanshyam, P. W. 4 Dr. R. A. Goyal had noted alleged to have got injury by some one. P. W. 4 Dr. R. A. Goyals attention was specifically drawn to his this note in his cross-examination and it was put to him why he had made that note, thereupon Dr. Goyal replied that, injuries of Ghanshyam were noted in the accident register because he was neither brought by the police nor by the case and, therefore, he made that remark while noting the injuries in the accident register. In answer to a Court question whether he had enquired from Ghanshyam as to who had caused that injury, Dr. Goyal replied that he did not enquire from Ghanshyam as he had enquired from the person who had brought him as to what happened, then he said that some one had assaulted. It was next enquired from him whether at the time of medical examination did he enquire the name of the assailants, Dr. Goyal specifically answered in the negative. ( 13 ) IN view of the above it was said that from the statement of Dr. Goyal it was apparent that P. W. 3 Sunder had admittedly taken Ghanshyam to the hospital and since in the injury report, Ex. Ka. 4, also it was noted that Ghanshyam was brought by Sunder the letter should have mentioned the name of the accused among the assailants when he had come to know their names as stated by him. That in view of the note of Dr. Goyal (P. W. 4) that on the information from Sunder it was only noted alleged to have got injury by some one, his testimony should. not have been relied upon. To appreciate the contention of the learned counsel for the appellants it has to be first scrutinized as to what has been the evidence of Sunder in the case. His evidence has only been that he had taken his brother, Ghanshyam, from the scene of the occurrence to the hospital. He has specifically admitted that by the time he reached the scene of occurrence the assailants had run away. Had he stated on oath that he had seen and recognized the assailants, and they were the present appellants then in view of the aforesaid note of Dr. Goyal in the injury register his testimony might have been criticised to be suspicious. Had he stated on oath that he had seen and recognized the assailants, and they were the present appellants then in view of the aforesaid note of Dr. Goyal in the injury register his testimony might have been criticised to be suspicious. He had not; even accompanied Om Prakash to the police station but had gone straight to the hospital. Hence even if it is believed that Sunder had not named these appellants to be the assailants to Dr. R. A. Goyal would simply mean that be had not seen and recognized the assailants which he himself had maintained. Hence anything substantial in favour of the defence is not turned out on the aforesaid note of Dr. R. A. Goyal in the injury report (Ex. Ka 4 ). ( 14 ) LASTLY, there remains the evidence of the two dying declarations of the deceased on which reliance was placed by the prosecution. In both these dying declarations viz. Ex Ka. 5, recorded by the City Magistrate and Ex Ka. 6, recorded by the 1. 0. the deceased Ghanshyam had specifically named both these appellants who had inflicted knife blows to him. ( 15 ) THE dying declaration of the deceased Ghanshyam has been challenged on behalf of the appellants on various grounds. It is alleged that in Ex. Ka. 5 the dying declaration he has, besides naming these two appellants who had inflicted knife blows to him; also stated that there were two other unknown persons, while in his dying declaration to the Investigating Officer he bas named all the four accused. It may be observed at the out set that we do not attach any importance to the dying declaration (Ex. Ka. 6), recorded by the Investigation Officer as the same has not been recorded after necessary precautions as required under Para, 115 of the Police Manual. Neither the certificate of the Doctor that the injured was in a fit condition to make statement, was obtained nor the statement was got signed by the injured nor attested by two responsible persons available at that time. ( 16 ) AS regards the dying declaration recorded by the City Magistrate, no doubt, therein the deceased had stated that besides these two appellants there were two other unknown persons. ( 16 ) AS regards the dying declaration recorded by the City Magistrate, no doubt, therein the deceased had stated that besides these two appellants there were two other unknown persons. Should the dying declaration, be rejected on that ground alone in the case of Ghurphokan and others v. The State of U. P. the dying declaration was amply corroborated by the eye-witnesses and, also by circumstantial evidence. But, the same was sought to be discarded on the ground that it did not mention the name of a certain person and also did not account for the injuries on the accused persons. Their Lordship of the Supreme Court held that the dying declaration could not be ignored or discarded only because it had these two infirmities. In the case of Godhu and another v. State of Rajasthan in his dying declaration the deceased said that he was forcibly dragged inside the room by the accused and that the accused had shot at him while the forcible dragging of the deceased by the accused was not proved to be correct from the prosecution evidence. Their Lordships observed as follows: We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection, of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of, the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to Sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration there may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration the other part of which has not been found to be true. Unless the part relied upon is Corroborated in material particulars by the other evidence on record. In the last mentioned cases the court would not normally act upon a part of the dying declaration the other part of which has not been found to be true. Unless the part relied upon is Corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. In the case of Khushal Rao v. State of Bombay, their Lordships proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High Court in India and in the Supreme Court and stated the law in these words: that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has, to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent, magistrate in the proper manner, that is to say, in the form of questions and: answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory, and human reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night whether the capacity of the man to remember the facts suited had not been impaired at the time he was making the statement by circumstances beyond his control; that the statement has been consistent through out if he had several opportunities of taking a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny keeping in view of the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases but from the fact that the Court. in a given cases bas come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case. ( 17 ) IN view of the above the evidence, furnished by the dying declaration must be considered by the Court just as the evidence of any other witness, though undoubtedly some special considerations arise in the assessment of dying declaration which do not arise in assessing the value of a statement made in Court by a person claiming to be a witness of the occurrence. In the first place, the Court has to be certain about the identity of the persons named in tile dying declarations. In the first place, the Court has to be certain about the identity of the persons named in tile dying declarations. As already quoted above a dying declaration which has been recorded by a competent magistrate in the proper manner stands on a much higher footing than a dying, declaration which depend upon oral testimony which may suffer from all infirmities of human character and that in order to test the reliability of, a dying declaration the Court has to keep in view the circumstances like the opportunity of the dying man for observation for example, thereafter there was sufficient light if the crime was committed at night whether the capacity of the run to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control and that the statement was not the result of tutoring by the interested party. ( 18 ) IN the present case it has already been established that there was electric tube light at the scene of occurrence in which the deceased could easily see the faces of the assailants. It is also not denied that the deceased knew both the appellants from therefore and he has correctly specified their names in his dying declaration. There is also certificate of the doctor attached in whose presence the statement was recorded by the City Magistrate that the patient (deceased) was in a fit condition of mind to give dying declaration and remained fit all the time the gave his statement. There is also testimony of Sri D. S. Verma (P. W. 5), the City Magistrate, who recorded the statement that Ghanshyam was fully conscious when his statement was recorded; that he got those statements recorded through his Ahalmad, who had accompanied him at the dictation of Ghanshyam Thereafter, the statement was read over to Ghanshyam. He has, however admitted that at this time some persons were present when be reached there; but, he had turned them out. To the question that why he had not recorded the answer ill question and answer form, he stated that he recorded the statement in narrative form as given by the deceased. It was also not suggested to P. W. 5 Sri D. S. Verma, City Magistrate that at that time the deceased was not in a position to make any statement on account of the injuries received by him. It was also not suggested to P. W. 5 Sri D. S. Verma, City Magistrate that at that time the deceased was not in a position to make any statement on account of the injuries received by him. Thus, the fact that Ghanshyam was fully conscious and was competent to make statement and his mental faculties were not impaired when he made the statement stands undisputed hence there is no reason to discard the dying declaration of the deceased, Ex. Ka. 6, recorded by Sri D. S. Verma (P. W. 5), City Magistrate, Saharanpur. ( 19 ) ON behalf of the defence however a certified copy if the judgment was filed in this Court regarding the incident of, the morning wherein those accused were acquitted and it was urged that these appellants were falsely implicated in the incident of morning and out of malice they were falsely named in this incidental so. Merely because the, appellants were acquitted in the morning incident, there is no ground to hold that they had not participated in this incident as decision of this incident would depend upon the evidence of this case. In the present case from the above discussion it is clear that there is eyewitness account of P. W. 1 Jai Prakash injured and P. W. 2, Om Prakash, the informant, besides the dying declaration of the deceased, Ghanshyam himself to the City Magistrate. We have fully discussed all the arguments against their evidence and have come to the conclusion that the same is trustworthy and there is no reasonable ground to discard it. ( 20 ) ON a conspectus of the prosecution evidence, discussed above, it has been established beyond doubt that when P. W. 1, Jai Prakash, at about 10. 00 p. m. was going to take milk, both these appellants ambushed him near the shop of Radha Kishan, attacked him with knives and when, on hearing the alarm of Jai Prakash, Ghanshyam deceased reached there, he was also inflicted knife injuries by these appellants, as a result of which Ghanshyam subsequently succumbed to his injuries. From the conduct of the accused and the nature of the injuries caused by them on to Ghanshyam and Jai Prakash, who were both unarmed, it is clear that an offence punishable under section 302. From the conduct of the accused and the nature of the injuries caused by them on to Ghanshyam and Jai Prakash, who were both unarmed, it is clear that an offence punishable under section 302. I. P. C. for committing the murder of Ghanshyam and under section 307, I. P. C. for causing incised wounds on vital part of the body of Jai Prakash, which could prove fatal, both read with section 34, I. P. C. have been fully established beyond reasonable doubt against the appellants. ( 21 ) AS regards the sentence also the appellants have been awarded the alternative sentence of life imprisonment instead of death sentence under section 302, I. P. C. which does not call for any interference. Sentence of ten years rigorous imprisonment under section 307, I. P. C. also under the circumstances of the case needs no interference. They have already been ordered to run concurrently. ( 22 ) THE result is that the appeal has no force and is hereby dismissed. Conviction and sentence of the appellants under sections 302 and 307, both read with section 34, I. P. C. to life imprisonment and to years rigorous imprisonment each respectively are confirmed. The appellants are on bail. They shall be taken into custody forthwith to serve out their sentences. Their bail bonds are cancelled. .