R. A. MEHTA, J. ( 1 ) ALL the three appellants accused have been convicted for offence punishable under Sec. 302 read with Sec. 34 of I. P. C. ant sentenced to suffer imprisonment for life. They are also convicted for offence punishable under Sec. 325 read with Sec. 34 of I. P. C. and sentenced to suffer rigorous imprisonment for one year. They are also convicted for offence punishable under Sec. 341 of. P C. and sentenced to suffer rigorous imprisonment for seven days. All the Sentences were ordered to run concurrently. ( 2 ) THE prosecution case is that the deceased Dahyabhai Bavabhai and his brother Manibhai Bavabhai (injured witness P. W. 2) were going towards Atic Company. The prosecution case is that in Atic Company there was a long standing labour dispute and there was a strike and lock out for a long time. Ultimately there was some settlement with the Management and as a result thereof some workmen had started attending the factory. However the other Union which was not agreeable to the settlement had continued the strike. The appellants accused belong to that Union and the deceased belonged to the Union which was agreeable to the settlement and members of which had started attending the factory. On the date of the incident i. e. on 30-10-1982 in the morning at about 6-30 when deceased Dahyabhai Bavabhai and his brother Manibhai Bavabhai (injured witness P. W. 2) as also an eye witness Bhagubhai Chhaganbhai (P. W. 3) were proceeding for attending the factory from their village Rabda when they reached the sim of village Binwada all the three accused came on a motor cycle and accused No. 1 Vithalbhai Nagarbhai asked the deceased as to why he was going on work in the factory. The deceased replied that Diwali was fast approaching and many other persons had also started attending the factory. Thereupon all the three accused got down from the motor cycle stating that they would see how they go to the factory started assaulting the deceased with iron pipes and iron bars. The deceased received blows on both of his legs and he fell down on the ground. On his brother intervening to save the deceased he was also assaulted with iron pipes and iron bars. P. W. 3 Bhagu Chhagan who was witnessing the incident ran away. The deceased received blows on both of his legs and he fell down on the ground. On his brother intervening to save the deceased he was also assaulted with iron pipes and iron bars. P. W. 3 Bhagu Chhagan who was witnessing the incident ran away. The accused also ran alive on the motor cycle stating that this time they have been let off alive but if they tried to go to the factory they would be murdered. On the news reaching the Company a vehicle of the Company came there and both the injured persons were taken to hospital at Valsad. At the hospital Dr. Ramratan H. Ramavati P. W. 14 examined the injured persons at about 8 a. m. Dahyabhai had six external injuries and on X-ray examination four internal injuries were found which are as under:- (1) Fracture of 5th 6 7 8 9 and 10th ribs on right side. At that time pnumothera was not found. (2) Fracture through the inter trochenteric and upper shaft of femur. (3) Fracture of right fibule. (4) Fracture of upper part of tibia ar d fibrla and on left side and the fracture line seen across the articular surface of fibula. P. W. 2 Manibhai Bavabhai had three external injuries and fracture of shaft of the ulna of left side. Police Sub-Inspector V. B. Chinoi P. W. 15 has stated that at about 8-30 to 9-00 a. m. he came to know that there was some scuffle near village Binwada and an injured person was admitted in hospital and therefore he immediately went to the hospital and recorded the complaint of injured Dahyabhai. That complaint is at Ex. 35. On the same day a yadi was sent to the Executive Magistrate for recording the dying declaration of injured Dahyabhai. Therefore the Deputy Mamlatdar Mr. Shantilal Bhanabhai (P. W. 6) came to the hospital and ascertained from the doctor as to whether the patient was conscious and an endorsement was made below the yadi that the patient was conscious and an endorsement is signed by Dr. Desai at 14 hours. Thereafter he recorded the dying declaration of Dahyabhai which is at Ex. 14. Shantilal Bhanabhai (P. W. 6) came to the hospital and ascertained from the doctor as to whether the patient was conscious and an endorsement was made below the yadi that the patient was conscious and an endorsement is signed by Dr. Desai at 14 hours. Thereafter he recorded the dying declaration of Dahyabhai which is at Ex. 14. Therein Dahyabhai had stated that while he his elder brother Manibhai and one Bhagubhai Chhaganbhai were going by walk for attending the factory in the sim of village Binwada the three accused who were employees of the Company came there on a motor cycle and asked him as to why they were going to attend the factory and that they should go back and while saying this they started bearing them with sticks in their hands as a result of which he received severe beating on his both the legs and there were grievous injuries He also stated that his younger brother Manibhai was also seriously injured. It is also stated that there was no enmity with any of the accused and because they (complainants side) were going to attend the walk and accused objected to their doing so they were beaten. The aforesaid dying declaration which was recorded at 14-45 hours bears the thumb impression of Dahyabhai Bavabhai put before the Deputy Mamlatdar. The other investigation was carried Gut. On 3-11-1982 the deceased was discharged from the hospital with a view to transfer him to Kasturba Hospital Valsad. On 5-11-1982 Dahyabhai expired and therefore the complaint Ex. 35 and the statement before Deputy Mamlatdar Ex. 14 are treated as dying declarations of the deceased and they are relied by the prosecution as dying declarations ( 3 ) THE accused were absconding and were not traceable for the entire month of November and they surrendered to the police 1 ( 4 ) THE accused were charged for offences punishable under Secs. 302 341 and 325 read with Sec. 34 of the I. P. C. because grievous hurt was caused to Dahyabhai and Manibhai and in furtherance of their common intention they had wrongfully restrained them from going to work and they had an intention to cause grievous hurt to both of them and cause death of Dahyabhai. 302 341 and 325 read with Sec. 34 of the I. P. C. because grievous hurt was caused to Dahyabhai and Manibhai and in furtherance of their common intention they had wrongfully restrained them from going to work and they had an intention to cause grievous hurt to both of them and cause death of Dahyabhai. ( 5 ) AT the trial the prosecution examined 16 witnesses including two eye witnesses; injured Manibhai P. W. 2 and Bhagubhai Chhaganbhai P. W. 3. P. W. 2 Manibhai Bavabhai has stated that he was working in Atul Company and his brother Dahyabhai was working in Atic Company. He has also stated that Bhagubhai Chhaganbhai P. W 3 was with them. Bhagubhai Chhaganbhai and Dahyabhai were little ahead while Manibhai was following. At that time somebody attacked his brother Dahyabhai and when Manibhai went there he was also beaten. He did not know as to with what weapon he was beaten He stated that he bad rot identified any of the accused persons. On the witness being declared hostile he was cross examined by the learned Public Prosecutor by the permission of the Court. The witness has even denied that the police had interrogated him. This is absolutely unbelievable because he is admittedly an injured eye witness. He has denied that the assailant had come on the motor cycle. He has even denied that he had any knowledge that accused No. 1 asked his brother Dahyabhai as to why they were going to attend the factory and his brother having replied that Diwali was fast approaching and many other persons were also attending the work and hence he was also going to attend the work. This witness also denied to have sees the three assailants. He even denied that the three accused had beaten his brother. He even denied to have raised any shouts though he was severely beaten on his arm and back and stated that he did not know the accused he did not know the assailants and he had not seen any of the assailants. He denied to have intervened to save his brother. He denied having heard the assailants saying that this time they were spared but next time they would be done to death. All these contradictions have been proved by Viratbhai B. Chinoi P. W. 15 in para 11 of his deposition. He denied to have intervened to save his brother. He denied having heard the assailants saying that this time they were spared but next time they would be done to death. All these contradictions have been proved by Viratbhai B. Chinoi P. W. 15 in para 11 of his deposition. Thus though the evidence of this witness does not connect the accused with the incident from the evidence of this hostile witness it is clear that the incident had taken place by and large in the same manner as is narrated by the deceased in his complaint and the dying declaration before the Deputy Mamlatdar except the fact that this witness has denied to have identified the three assailants as the three accused. His evidence when he says that he had not identified the assailants is in many respects unnatural. He refuses the accused having administered threats he even refuses to have knowledge about the number of accused. In the cross examination of this witness he even states that he does not know as to what weapons were in the hands of the assailants; he did not even know as to by which weapon the blow was given on his arm. He even further stated that he did not say anything about the incident to Jerambhai nor did Dahyabhai say anything to him. He even denied that he was told anything by deceased Dahyabhai about the incident. He even stated that he has no idea whether his brother Dahyabhai was in a position to speak by evening. He even stated that all the time he was with Dahyabhai. However he does not know whether Dahyabhai had told anybody about the incident. Thus he tries to show that all along he was with his brother Dahyabhai and Dahyabhai did not talk anything about the incident. Thus he tried to show that Dahyabhai had not given the complaint and had not given the dying declaration. His evidence is falsified by the evidence of doctor who has stated that Dahyabhai was kept in the emergency ward and this witness was removed to general ward. This witness has rendered his evidence absolutely unnatural and uncreditable when he says that he had not identified the assailants. He even refuses to admit the number of assailants and even the simple weapons when he himself has received blows. This witness has rendered his evidence absolutely unnatural and uncreditable when he says that he had not identified the assailants. He even refuses to admit the number of assailants and even the simple weapons when he himself has received blows. This becomes more surprising when not only he himself is injured but his close relative and brother has died as a result of this incident. As seen earlier except the identity of the assailants from the evidence of this witness it is clear that the incident had taken place by and large in the same manner as is narrated by the deceased in his complaint and the dying declaration. ( 6 ) P. W. 3 Bhagubhai Chhaganbhai is another eye witness. He is also working in Atul alongwith Manibhai P. W. 2. He admits that Dahyabhai Manibhai and he himself were proceeding to the factory. He his stated that two persons had surrounded Dahyabhai and he himself was little ahead and he had run away and he did not know anything about the incident. He even denied to have any knowledge about any weapons with the assailants. He even denied that he knew the three accused. On his being declared hostile he was cross examined by the learned Public Prosecutor with the permission of the Court. He denied to have seen the three accused coming on the motor cycle and incident taking place between the accused and the deceased. He denied to have knowledge about the weapons and the blows received by the deceased. He admitted that he had not stated in his police statement that he had run away before the incident had taken place. In the cross examination he also stated that on the same day at about 9-00 a. m. he had gone to the hospital and at that time the bed of Manibhai P. W. 2 was on upper floor and that of Dahyabhai was on ground floor and that at that time. Dahyabhai was in a position to speak. Thus the steely of Manibhai P. W. 2 that he was all along with Dahyabhai and that Dahyabhai had not spoken to anybody is clearly falsified by the evidence of this witness. This witness has also stated that when he went to the hospital at 9-00 a. m. he was there upto 11-00 a. m. and during that time Dahyabhai was talking. This witness has also stated that when he went to the hospital at 9-00 a. m. he was there upto 11-00 a. m. and during that time Dahyabhai was talking. ( 7 ) JERAMBHAI Bhulabhai P. W. 5 is the son-in-law of deceased. Dahyabhai. On learning about the incident he had gone to the hospital and he had seen Manibhai and Dahyabhai having injuries. This witness stated that he had not talked with Manibhai or Dahyabhai and Dahyabhai also had not told anything to him about the incident. This witness also was declared hostile and cross examined with the permission of the Court by the learned Public Prosecutor. The narration of the incident by this witness in his police statement has been proved by the deposition of P. S. I. Chinoi. This witness being son-in-law of the deceased had gone to the hospital but curiously enough he did not talk anything with Dahyabhai or Manibhai and Dahyabhai did not say anything about the incident. It is surprising that such a close relative who goes to the hospital to see his father-in-law does not talk with him and his father-in-law also does not tell him anything about the incident. However he has stated that he knows all the three accused and they are all working in Atic Company. He also admitted that they were not going to the work and that Dahyabhai and Manibhai were going to the work. He also admitted that Dahyabhai and Manibhai were talking when he went there. ( 8 ) FROM the evidence of these three witnesses it is clear that they are out to help the accused. Several important aspects except the identity of the accused have been proved i. e. that the incident had taken place in the morning at about 6-30 a. m. while they were going to attend the factory and Dahyabhai was removed to hospital and while he was in hospital he was in a position to speak and that Manibhai was in another ward (general ward) and Dahyabhai was in emergency ward. Therefore when Manibhai states that he was with his brother Dahyabhai in the same ward is a false statement and he has made such a statement only with a view to show that his brother Dahyabhai had not given any statement or dying declaration. This deliberate attempt on the part of Manibhai speaks volumes. Therefore when Manibhai states that he was with his brother Dahyabhai in the same ward is a false statement and he has made such a statement only with a view to show that his brother Dahyabhai had not given any statement or dying declaration. This deliberate attempt on the part of Manibhai speaks volumes. Even though he admits to be the eye witness to the incident he is not prepared to admit even the number of assailants or the weapons. He even goes to state that he had become unconscious even though there is no such injury found on his person. Similarly the evidence of Bhagubhai Chhaganbhai P. W. 3 is not reliable. Even though he says that he had any away from the place of the incident even before the happening of the incident he admits that he had not stated so before the police. Witness Jerambhai who goes to see his seriously injured father-in-law in the hospital says that he did not talk to his father-in-law and his father-in-law also did not talk to him anything about the incident. This is absolutely unbelievable. From the evidence of these three witnesses it must be stated that it is not possible to connect the accused with the offence punishable under Sec. 302 I. P. C. because there is no substantive evidence on that point. ( 9 ) THE substantive evidence is in the form of two dying declarations of deceased at Ex. 14 and Ex. 35. Ex. 35 is the first dying declaration which is in the form of the complaint recorded at 9-15 a. m. the same day by the Police Sub-Inspector. It is fairly detailed which is ordinarily found in such cases and the learned Counsel for the appellants-accused has contended that it is unnatural to be a dying declaration as it is too detailed. He has also submitted that it is recorded before the police officer and therefore its probative value is weak. It is also stated that the FIR is stated to have been recorded on the date of the incident. However it is submitted that it has in fact been recorded on 2-11-1982 i. e. 3 days after the incident. It is also submitted that though on 1-11-1982 it was Monday it has not been filed on Monday but it has been filed on 2-1982. However it is submitted that it has in fact been recorded on 2-11-1982 i. e. 3 days after the incident. It is also submitted that though on 1-11-1982 it was Monday it has not been filed on Monday but it has been filed on 2-1982. It is therefore submitted that the FIR and the dying declaration were not recorded on 30-10-1982. The learned Counsel for the appellants has also submitted that the Police Sub-Inspector who recorded the complaint was himself an accused in a murder case and there was direct rivalry between the members of Union of Gajanandbhai Patel on one side and the police and the management on the other side and therefore this Police Sub-Inspector had enmity with the Union to which the accused belonged. ( 10 ) IN this complaint the deceased has stated that he has been serving in Atic Company since last 25 years and the accused are also working in the same factory; there was a strike in the Company and the Company had also declared lock out; that the lock out was lifted on 4-10-1982 and some workers including the complainant and his brother had started working in the factory. But other workmen were not coming to the work and they were making demands as raised by the Union. He has narrated the incident that while he his brother and Bhagubhai Chhaganbhai were walking towards the Company when they reached the sim of village Binwada accused No. 1 had come on his red motor cycle with accused Nos. 2 and 3 and the accused No. 1 had asked as to why he was going to work and he had replied that as Diwali holidays were coming and many people had gone to work he was also going to work Thereupon all the three accused got down from the motor cycle and stated that they would see as to how they go to the factory and accused No. 1 who had an iron pipe and accused Nos. 2 and 3 who were having iron bars stated assaulting with the same and the deceased was seriously injured on his both the legs and as a result thereof he Such down His brother Manibhai who intervened was also assaulted with iron pipes and iron bars and on seeing this incident Dahyabhai Chhaganbhai had come and all the three accused had run away on their motor cycle stating that on that day they had been let off alive but thereafter if they try to go to the work they would be done to death. ( 11 ) IN order to appreciate the evidence of dying declarations it would be convenient to take the second dying declaration first for consideration. It is at Ex. 14 recorded by Deputy Mamlatdar Shantilal Bhanubhai P. W. 6. The police had sent yadi Ex. 15 to Executive Magistrate for recording the dying declaration With the yadi the Deputy Mamlatdar came and he ascertained from the doctor whether the patient was conscious or not and got made his endorsement below yadi Fix. 15 that the patient was conscious at 14-45 hours on 30-10-1982. He asked the relatives of the patient and the doctor to go out and thereafter he asked Dahyabhai as to what had happened and as Dahyabhai went on speaking he had taken down his statement and below the statement he obtained thump impression of Dahyabhai because Dahyabhai was not in a position to sign as he was being administered glucose celline. In the cross examination he has stated that during his service of six years as Deputy Mamlatdar he has recorded several dying declarations and that he had been given necessary authority for the same and he had gone to record the dying declaration on behalf of the Executive Magistrate; as the Executive Magistrate had sent him for the purpose. He had not received any written instructions but he was given the yadi by the Executive Magistrate. The cross examiner has not challenged the statement that he has recorded several dying declarations and has been given necessary authority for the same Since there was no such challenge it is clear that the cross examiner was satisfied about the authorisation of the Deputy Mamlatdar for the purpose of recording dying declaration. The cross examiner has not challenged the statement that he has recorded several dying declarations and has been given necessary authority for the same Since there was no such challenge it is clear that the cross examiner was satisfied about the authorisation of the Deputy Mamlatdar for the purpose of recording dying declaration. Even if it is assumed that he had no authority the fact remains that the deceased did make the dying declaration and the Deputy Mamlatdar recorded such dying declaration. Section 32 of the Evidence Act does not require that a dying declaration must be recorded by the Executive Magistrate only. In fact there is no requirement that dying declaration should be recorded by Executive Magistrate only. The dying declaration can be recorded by anyone even by the police or any other person and the probative value of such dying declaration will vary in the circumstances of each case. Dying declaration recorded by an Executive Magistrate may have greater probative value but that does not mean that the dying declaration recorded by any other person has necessarily less probity. Just as Executive Magistrate is likely to be an independent person not connected with the complainant or the assailants side his recording of dying declaration would be more reliable and so is the case when the dying declaration is recorded by any other independent officer. This witness has recorded several dying declaration in the past and there is no doubt whatsoever that he is an independent witness. ( 12 ) THE learned Counsel for the accused has submitted that the Deputy Mamlatdar is not an Executive Magistrate and he has recorded the dying declaration as if he was the Executive Magistrate and he had given that impression to the deceased and that he had signed below the dying declaration as Executive Magistrate. This does not in any way affect the probative value and credence of the record of dying declaration. This witness has been sent by the Executive Magistrate and he has recorded the dying declaration. It is also contended that the dying declaration is not in a question and answer form. Ex. 14 begins with question and answer form. The deceased has given his full name age and address. He was questioned whether he knows the questioner and he has replied in the affirmative. It is also contended that the dying declaration is not in a question and answer form. Ex. 14 begins with question and answer form. The deceased has given his full name age and address. He was questioned whether he knows the questioner and he has replied in the affirmative. He was also questioned whether he was conscious and he has replied in the affirmative. The declaration is recorded in a narration form. The witness has stated that he had asked the deceased as to who had beaten him and whatever was told by the deceased has been taken down by him in the words of the deceased. Therefore even though the dying declaration is not strictly in the form of question and answer it has been recorded in the words of the deceased. ( 13 ) THE learned Counsel for the accused has also attacked the dying declaration Ex. 14 on the ground that on the dying declaration there was no endorsement of the doctor of the victim being conscious. It is to be noted that the recording of dying declaration is completed at 14-45 hours and before that the doctor had made his endorsement at 14-30 hours on the yadi to the effect that the patient was conscious. Even the witnesses who have turned hostile have admitted that Dahyabhai was conscious and was speaking. The fact that Dahyabhai died four days after the incident also lends support to the conclusion that Dahyabhai was conscious and was able to speak and give his statement. There is on reason to believe that the Deputy Mamlatdar would record something in the name of Dahyabhai even if Dahyabhai was not in a position to make the statement. ( 14 ) IT is also stated that the dying declaration does not bear the signature of the deceased even though the dying declaration recites that it has been dictated and recorded and that the person has put his signature in token of having understood the same. Even though a signature is stated to have been put infact there is no signature and only a thumb impression has been taken before the Deputy Mamlatdar. Even though a signature is stated to have been put infact there is no signature and only a thumb impression has been taken before the Deputy Mamlatdar. The Deputy Mamlatdar has explained that at the time of recording of the dying declaration Dahyabhai was being administered glucose celline and therefore he was not in a position to sign and therefore his thumb impression was taken and after taking the thumb impression the Deputy Mamlatdar has put his signature. ( 15 ) THE learned Counsel for the accused has submitted that this dying declaration attributes sticks to the accused whereas in the earlier complaint this very person has attributed iron pipes and iron bars to the accused. He has also submitted that in both the dying declarations there is no reference to any blow or injury on the chest or fractures of the ribs and only reference is to the blows on the legs It is therefore submitted that the dying declarations are inconsistent with the medical evidence and therefore the probaty of the dying declarations is doubtful. It is not possible to agree with the submissions of the learned Counsel for the accused. In both the dying declarations the victim has given the names of the accused and the persons who have given blows and the reason; for the same. The most important part of the dying declaration is as to who gave the blows on the deceased and there is no inconsistency in the dying declarations about the same. The discrepancy about the weapons iron pipes and iron bars on one hand and sticks on the other hand is not much significant because it night have been loosely expressed But there is no attempt to make any improvement. ( 16 ) THE learned Counsel for the accused has also referred to several judgments of the Supreme Court on the question of admissibility and reliability of dying declarations. Before we proceed to refer to these judgments he would refer to the relevant part of Sec. 32 of the Evidence Act under which dying declarations are made admissible in evidence. ( 16 ) THE learned Counsel for the accused has also referred to several judgments of the Supreme Court on the question of admissibility and reliability of dying declarations. Before we proceed to refer to these judgments he would refer to the relevant part of Sec. 32 of the Evidence Act under which dying declarations are made admissible in evidence. Section 32 reads as follows:"section 32 :- Statements written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case arrears to the Court unreasonable are themselves relevant facts in the following case:- When it relates to cause of death (1) When the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of that persons death comes into question. SUCH statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question" ( 17 ) IN the case of State of Uttar Pradesh v. Singhara Singh and Ors AIR 1964 SC 358 the Supreme Court was concerned with the recording of a confession by a Magistrate not empowered by State Government and the Supreme Court held that if such a confession was recorded by a Magistrate not empowered by the State Government oral evidence to prove such confession is not admissible. The reason given by the Supreme Court in the judgment is that Sec. 164 of the Criminal Procedure Cede which gives power to Judicial Magistrate to record confession also provides elaborate procedure to be followed by the Judicial Magistrate before and while recording the statement. Section 164 applies duly to such confessions or the statements recorded by the Judicial Magistrate. It does not apply to dying declarations which are admissible under Sec. 32 of the Evidence Act. This judgment does not have any application in the facts and circumstances of the present case. ( 18 ) IN the case of Moti Singh and Anr. Section 164 applies duly to such confessions or the statements recorded by the Judicial Magistrate. It does not apply to dying declarations which are admissible under Sec. 32 of the Evidence Act. This judgment does not have any application in the facts and circumstances of the present case. ( 18 ) IN the case of Moti Singh and Anr. v. State of Uttar Pradesh AIR 1964 SC 900 the Supreme Court observed that Sec. 32 (1) makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death in cases in which the cause of the persons death comes into question. When the deceased did not die as a result of injuries received by him in the incident his statement relating to that incident cannot be said to be a statement relating to cause of his death or as to any of the circumstances of the transaction which resulted in his death. In that case the incident had taken place on 9-2-1960 and he was discharged from the hospital and there was nothing to show on record as to in what circumstances he left the hospital. He died after 20 days on 1 and his body was burnt a couple of hours before the Sub-Inspector reached there. In such facts the Supreme Court came to the conclusion that the statement of the deceased was not admissible in evidence under Sec. 32 of the Evidence Act because it was not proved that the deceased died as a result of the injuries received in the incident. In the present case there is no doubt that the deceased has died as a result of the injuries received by him in the incident and there is no question about the identity of the assailants. ( 19 ) IN the case of Darshan Singh and Ors. In the present case there is no doubt that the deceased has died as a result of the injuries received by him in the incident and there is no question about the identity of the assailants. ( 19 ) IN the case of Darshan Singh and Ors. v. State of Punjab AIR 1983 SC 554 the Supreme Court held that a dying declaration must inspire confidence so as to make it safe to act upon it and when the medical evidence shows that the vital organs of the deceased like peritoneum stomach and spleen were completely smashed he could not be said to be in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death and therefore such dying declaration could not be relied upon for any purpose and had to be excluded from consideration. In the present case the evidence is quite clear. Not only the medical evidence is clear about the victim being conscious and able to speak but even the hostile witnesses have admitted that Dahyabhai was conscious and able to speak. ( 20 ) IN the case of Mohar Singh and Ors. v. State of Punjab AIR 1981 SC 1578 the dying declaration was recorded by the investigating police officer and the Supreme Court observed that the deceased had given very detailed and graphic narration of the case starting from the enmity and the minutest picture of assault and the Supreme Court found that it was impossible to believe that the deceased even if conscious would make such a detailed statement having regard to the injuries on him. Moreover the dying declaration was recorded by the investigating officer and it was not attested by the wife of the deceased who was also stated to be available and therefore the Supreme Court held that such dying declaration has to be excluded from consideration. In the present case the second dying declaration before the Deputy Mamlatdar is not a detailed one. It is a very short one showing as to who had assaulted Dahyabhai. . ( 21 ) IN the case of Tehal Singh and Ors. In the present case the second dying declaration before the Deputy Mamlatdar is not a detailed one. It is a very short one showing as to who had assaulted Dahyabhai. . ( 21 ) IN the case of Tehal Singh and Ors. v. State of Punjab AIR 1979 SC 1347 the Supreme Court held that dying declaration need not have been made in expectation of death and such dying declaration may in certain situation be very detailed and it may in a given case arouse suspicion but it cannot necessarily lead to the inference that the statement is a fabricated one. In that case the dying declaration was recorded by a Head Constable and he had recorded it in his own way what the deceased had stated. Even then the Supreme Court held that no infirmity could be attached to that dying declaration on this account. Under Sec. 32 (1) of the Evidence Act a declaration of a person not surviving is admissible as dying declaration and it is not necessary to have been made in expectation of death. That statement of the person may be a detailed one. However when it is made in expectation of death in such a case it would be only natural that it is very brief and not detailed one. In the present case the first dying declaration Ex. 4 is made before the police officer in the form of FIR and it is a detailed one. The second dying declaration recorded by the Deputy Mamlatdar is a short one. Both of them are recorded on the same day and there would be more credence to one recorded by the Deputy Mamlatdar who is an independent officer and statement before him is more natural and reliable. ( 22 ) IN the case of Habib Usman v. State of Gujarat AIR 1979 SC 1181 the Supreme Court observed that merely because some friends and relatives happened to be with the deceased when the statement was recorded it cannot be thrown out as tutored. In that case immediately at the time of assaults the injured did not give the name of the assailant but said that he had been stabbed by one person on his chest and the assailant had run away. In the dying declaration he had given the name of the accused within a few minutes. In that case immediately at the time of assaults the injured did not give the name of the assailant but said that he had been stabbed by one person on his chest and the assailant had run away. In the dying declaration he had given the name of the accused within a few minutes. The Supreme Court observed that the reasons given by the learned Sessions Judge for discarding the dying declaration were unsatisfactory and the High Court was justified in accepting the dying declaration and acting upon it. ( 23 ) IN the case of K. Ramachandra Reddy and Anr. v. The Public Prosecutor AIR 1976 SC 1994 in para 6 the Supreme Court observed as under:-"thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P 2. The dying declaration is undoubtedly admissible under Sec. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross examination the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring. prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that be was making the statement without any influence or rancour once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicity enunciated by this Court in Khushal Rao v. State of Bombay 1958 SCR S52 ( AIR 1958 SC 22 ) where the Court observed as follows:-ON a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court we have come to the conclusion in agreement with the opinion of the Full Bench of the Madras High Court aforesaid (1) 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 oven 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; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judge 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 stand 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 character. and (6) 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 whether there was sufficient light if the crime was committed at night whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control that the statement has been consistent throughout if he bad several opportunities of making a dying declaration apart from the official record of it and that the statement had been made at the earliest oppo rtunity 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 very close secutiny keeping in view the fact that the statement has been made in the absence of the accused who bad no opportunity of testing the veracity of the statement by cross examination". The Supreme Court on page 1997 and 1998 also noted that the above observations have also been endorsed by a Bench of five Judges of the Supreme Court in the case of Harbans Singh (supra ). Applying this judgment to the facts and evidence in the present case it is clear that there are no circumstances to detract from the reliability of the dying declaration recorded by Deputy Mamlatdar. ( 24 ) IN the case of Rasheed Beg and Ors. V. State of Madhya Pradesh AIR 1974 SC 332 the Supreme Court held that the two dying declarations made by a boy of 12 years were not reliable because the boy was in serious condition and was losing consciousness when these dying declarations were recorded and the person who bore enmity with the named accused had accompanied the boy from the place of the incident to the hospital and he was also present when the dying declarations were recorded. On such circumstances the Supreme Court held that the possibility of the boy being tutored to name the accused could not be ruled out and that it was not safe to fasten the guilt on the named accused without any corroborative evidence in support of the dying declarations. ( 25 ) IN the case of Rabi Chandra Padhan and Ors. v. State of Orissa AIR 1980 SC 1738 in a para 7 the Supreme Court observed as follows:-IT is well settled by a catena of decisions of this Court that if after searching scruting the Court is satisfied that the dying declaration represents a truthful version of the occurrence in which the deceased received injuries which led to his death then even in the absence of any independent corroboration a conviction can be founded thereon". In that case dying declaration Ex. 9 was fairly detailed one and in that dying declaration deceased had named original accused Nos. 2 to 8 as his assailants. In the second dying declaration before the Tahsildar it was a short cryptic statement. In that case dying declaration Ex. 9 was fairly detailed one and in that dying declaration deceased had named original accused Nos. 2 to 8 as his assailants. In the second dying declaration before the Tahsildar it was a short cryptic statement. It was not in the question and answer form and in fact there was no proper questioning and accused Nos. 2 to 7 were mentioned by the deceased as his assailants and the name of accused No. 8 was omitted and the Supreme Court observed that the deceased in a later dying declaration implicated more persons as his assailants than on the earlier occasion when his memory must by quite fresh the Court is put to caution that the deceased may have been prompted to implicate some innocent persons or is drawing on his imagination or is using the occasion to wreak vengeance on some persons. But the case before the Supreme Court (as before us) was reverse to this. In the second dying declaration he did not refer to the presence of accused No. 8 and the Supreme Court observed that such a situation cannot be put on par with one that was before the Supreme Court in Thurukanni Pompiahs case AIR 1965 SC 939 . In the present case before use second dying declaration is in no way an improvement on the =earlier dying declaration and there is no reason to belive that someone had tutored the deceased before his second dying declaration was recorded. ( 26 ) THUS on a close and detailed scrutiny of the dying declarations and other circumstances appearing in the case we are of the opinion that second dying declaration Ex. 14 recorded by the Deputy Mamlatdar is satisfactory and reliable dying declaration and the conviction of the accused should rest on the Fame. ( 27 ) IN view of the aforesaid discussion we are clearly of the view that the learned Sessions Judge was right in relying upon the dying declaration Ex. 14 and coming to the conclusion that the three accused are responsible for assaulting and causing injuries to the deceased and his brother Manibhai. They had come there with the common object and intention of preventing persons from attending the factory and causing them grievous injuries and to prevent them and restrain them from going to the factory. 14 and coming to the conclusion that the three accused are responsible for assaulting and causing injuries to the deceased and his brother Manibhai. They had come there with the common object and intention of preventing persons from attending the factory and causing them grievous injuries and to prevent them and restrain them from going to the factory. ( 28 ) IT is clear from the evidence on record that Atic factory was closed since about five year due to long strike and lock out and only few days before the incident one upon had arrived at a settlement with the management and some workers like the deceased had started attending the work. As against that the other Union to which the accused people belonged continued the strike and pressed their demands. It is clear from the evidence that these three accused wanted to restrain the deceased from going to the factory. However the deceased had replied that Diwali was approaching and many other workers were attending the work and he also wanted to attend the work. At that time the deceased was severely assaulted and beaten up by these three accused. These criminal acts were done in futherance of the common intention of all the accused and therefore each of the accused is liable for that act in the same manner as if it were done by him alone under the requirement of Sec. 34 of the I. P. C. ( 29 ) THE question then arises is what offence is committed by these accused. The learned Sessions Judge has come to the conclusion that offence is of murder punishable under Sec. 302 IPC. The learned Counsel for the accused has submitted that even if the Court comes to the conclusion that the accused have committed an offence it cannot be under Sec. 302 I. P. C. He has made several alternative submissions. He has submitted that at the most it would amount to offence punishable under Sec. 325 I. P. C only. In the alternative it is submitted that it would be one punishable under Sec. 304 Part II and lastly under Sec. 326 of the I. P. C. The learned Counsel for the appellants has submitted that there was no intention to cause death as is clear from both the dying declarations Ex. 14 and 35. In the alternative it is submitted that it would be one punishable under Sec. 304 Part II and lastly under Sec. 326 of the I. P. C. The learned Counsel for the appellants has submitted that there was no intention to cause death as is clear from both the dying declarations Ex. 14 and 35. There was no strong reason to harbour any intention of going to the extent of causing death by such injuries which would in the ordinary course of nature be sufficient to cause death. Even the deceased has stated that there was enmity between them and the deceased has also attributed words to the accused to the effect that this time they have been let off alive but next time if they tried to go to the factory he would be done to death. Thus it is clear that even at the time of assault there was no intention to cause death or such injuries as would be sufficient in the ordinary course of nature to cause death. It is also submitted that in both the dying declarations the deceased has referred to the blows being given on the legs and there is no reference whatsoever regarding any blow on the chest resulting in to fractures of the ribs. The medical evidence is that none of the six external injuries is sufficient in the ordinary course of nature to cause death. However they were together sufficient in the ordinary course of nature to cause death. The fractures of ribs were sufficient in the ordinary course of nature cause death. He has also stated that the deceased had died due to shock and haemorrhage resulting from haemo-pneumo-thorax on right side and septaceamin resulting from multiple injuries. Thus the cause of death is fractures of the ribs and consequent haemorrhage and haemo-pneumo-thorax on right side and septaceamia resulting in multiple injuries. ( 30 ) IN the light of above circumstances it is clear that it cannot be said that the accused while assaulting and causing injuries to the deceased had done the act with an intention of causing death or with an intention of causing such bodily injury as is likely to cause death or with the knowledge that it is likely to cause death. Therefore the case cannot be covered by Sec. 302 or 304 of I. P. C. There is no ingredient of knowledge or intention to cause death or such bodily injury as is likely to cause death. Therefore the accused cannot be convicted under Secs. 302 or 304 of the I. P. C. ( 31 ) THE learned Counsel for the accused has submitted that the accused would be guilty for causing grievous hurt punishable under Sec. 325 I. P. C. only and not under Sec. 326 I. P. C. Section 325 I. P. C. is for voluntarily causing grievous hurt and is punishable with imprisonment upto seven years whereas Sec. 326 I. P. C. is for aggravated case of causing grievous hurt by use of weapons. It provides that whoever voluntarily causes grievous hurt by means of any instrument for shooting stabbing or cutting or any instrument which used as a weapon of offence is likely to cause death shall be punished with imprisonment for life or with imprisonment for a discrimination of other 10 years and shall also be liable to fine. The present case is not a case of causing grievous hurt without the use of weapons. Stick is also a weapon which can be used as a weapon of offence and in the present case it has been used as weapon of offence. When it is used as weapon of offence it is likely to cause death. Therefore all the ingredients of Sec. 326 I. P. C. are satisfied and the case cannot be taken to lesser offence punishable under Sec. 325 I P. C. ( 32 ) IN view of the above the conviction and sentence passed by the learned Sessions Judge are required to be reversed and modified. Instead of conviction under Sec. 302 I. P. C. all the accused are required to be convicted under Sec. 326 I. P. C. ( 33 ) HEARD the learned Counsel for the accused and the learned A. P. P. for the State on the point of quantum of sentence. The learned Counsel for the appellant has submitted that the accused have undergone sentence of more than five years and the sentence undergone will suffice and meet the ends of justice. The learned Counsel for the appellant has submitted that the accused have undergone sentence of more than five years and the sentence undergone will suffice and meet the ends of justice. On the other hand the learned A. P. P. has submitted that the case is a grave one and the maximum sentence prescribed under Sec. 326 of the Indian Penal Code may be awarded. He has submitted that the deceased was an innocent workman having no enmity with the accused and he was going to his work to earn his bread in pursuance to the settlement arrived at between the management and the Union. The accused who belonged to the rival Union wanted to continue the strike and terrorise the workmen going to the work and prevent them not only by use of force and violence but also by striking terror and setting example to other workers who might desire to attend the work. Such criminal high handed and worst use of muscle power in the name of Trade Union activity is required to be curbed with a strict and severe punishment. He has further submitted that what extent these accused persons had spread terror in the mind of people would be evident from the fact that even close relatives like brother and son-in-law of Dahyabhai have not been able to give evidence in the Court against the accused when they in fact they had seen the incident and they knew that Dahyabhai was severely beaten and ultimately died at the hands of the accused. They must have felt that if merely going to the work against the wishes of these accused has resulted into such calamity giving evidence in Court will lead to a greater misery to their families. So submits the learned A. P. P. ( 34 ) ALTHOUGH it is not possible to agree with all that the learned A. P. P. has submitted there is lot of substance in it. It is no doubt true that the innocent persons have been caused grievous hurt by means of sticks used as weapon of offence and the only intention was not only to terrorise these people but also to terrorise all workmen intending to attend the work. It is this kind of criminal activity by Trade Union workers which brings Trade Union movement in disrepute and causes bitter rivalry. It is this kind of criminal activity by Trade Union workers which brings Trade Union movement in disrepute and causes bitter rivalry. There is no mitigating circumstance showing as to why severe punishment should not be imposed particularly when three armed persons have assaulted an unarmed person and mercelessly beaten him. We therefore direct that each of the accused shall suffer imprisonment for a period of seven years for offence punishable under Sec. 326 I. P. C. the rest of the convictions and awards of sentences are confirmed. ( 35 ) IN the result the appeal is partly allowed and the conviction and sentence imposed on all the accused under Sec. 302 I. P. C. read with Sec. 34 I. P. C. are quashed and set aside. Instead of that all the three accused are convicted under Sec. 326 I. P. C. read with Sec. 34 I P. C. and are sentenced to suffer Rigorous Imprisonment for seven years. The other two convictions under Sec. 325 read with Sec. 34 I. P. C. and under Sec. 341 I. P. C. and the sentences imposed for the same by the learned Sessions Judge Valsad are confirmed. Appeal is partly allowed accordingly. Appeal partly allowed: conviction altered and Sentence reduced. .