MADAN MOHAN LAI, J. These two appeals have been filed against the judgment and order dated 9-3-1978 passed by Sri R. K. Gupta, the then Ses sions Judge, Etah by which he has convicted Shyaq Ali appellant under Section 302,1. P. C. and has sentenced him to imprisonment for life and has convicted Udal appellant under Section 326/34, I. P. C. and has sentenced him to rigorous imprisonment for four years. As these appeals arises from the same judgment, hence both these appeals have been heard together and arc being disposed of by this judgment. 2. Lal Khan deceased and both the appellants were residents of the same place, i. e. Qasba Bilram, Police Station Kasganj, Distt. Etah. According to the case of the prosecution at 4 p. m. on 26-4-76 a dispute had taken place between Lal Khan deceased on the one hand, and both the appellants, on the other. As a consequence of the said quarrel, on 26-4-76 at about 7. 30 p. m. Shayaq Ali, armed with a knife, and Udal appellant, barehanded come in front of the house of Lal Khan deceased and called him outside. When Lal Khan deceased came out in the street Udal appellant caught hold of him and Shayaq Ali appellant then gave a knife blow to him as a result of which he sustained serious injury in his abdomen. A noise had been raised which attracted Munna, Maqsood and others to the place of occurrence, whereupon the appel lants ran away towards north, Lal Khan got a report of the incident written and he then went to the Police Station Kasganj, situated at a distance of four miles, where he handed over the said report, on which a case under Section 307, I. P. C. was registered. Lal Khan was then sent to P. S. C. Kasganj, where from where he was referred to Mission Hospital, Kasganj, where he expired on 2-5-76 at 9 a. m. The case was then converted and registered under Section 302,i. P. C. 3. In support of its case the prosecution examined twelve witness as P. W. 1 Munna and P. W. 3 Maqsood were eye-witnesses. P. W. 4 Dr. K. S. Yadav was Medical Officer Incharge, P. S. C. Kasganj. In support of its case the prosecution examined twelve witness as P. W. 1 Munna and P. W. 3 Maqsood were eye-witnesses. P. W. 4 Dr. K. S. Yadav was Medical Officer Incharge, P. S. C. Kasganj. He had examined Lal Khan on 26-4-1976 at 8 p. m. , and found the following injuries on his person :- (1) Stab wound in the abdomen. Intestines and mesantery were protruding out. The depth of the wound could not be found out. The pulse was weak. The body was cold. (2) Cut wound 2cm x Jem X skin deep in all digits of the fingers of the right hand. 4. According to the doctor the said injuries were fresh at the time of examination and were caused by a sharp edged weapon. The aforesaid injury No. 2 was said to have been caused when the victim tried to save himself. P. W. 1 Dr. Mery R. Ali, Medical Officer, Mission Hospital, Kasganj, deposed that Lal Khan was admitted in the said Mission Hospital at 11 in the night on 26-4-76 having been referred by the aforesaid Dr. K. S. Yadav. He further deposed that Lal Khan deceased was operated upon and that he ultimately expired on 2-5-76 at 9 a. m. 5. P. W. 7 Dr. S. N. Bhatnagar, the then Deputy Chief Medical Officer, Etah had conducted the post mortem examination of the dead-body of Lal Khan on 2-5-76 at 5-30 p. m. and he had found the following ante-mortem injury on the dead body :- 1. Horizontal stitched wound B. 5 cm long 2 cm above the unblious. 6. On internal examination peritoneum was found torn. According to the (Joctor the death of Lal Khan was caused due to septicaemia caused by the aforesaid injury to abdomen. 7. Dying declaration of Lal Khan was recorded at P. S. C. Kasganj by Sri M. L. Kadam, Sub-divisional Magistrate on 26-4-76 at 10. 30 p. m. P. W. 10 Gurudatt was clerk constable at P. S. Kasganj. He deposed that on 26-4-76 at 8. 30 p. m. Lal Khan had come to the police station to hand him over the written report of the incident on which he had registered the case. 30 p. m. P. W. 10 Gurudatt was clerk constable at P. S. Kasganj. He deposed that on 26-4-76 at 8. 30 p. m. Lal Khan had come to the police station to hand him over the written report of the incident on which he had registered the case. Constable Biri Singh had deposed that on receipt of the information regarding the death of Lal Khan on 2-5-76 this case was converted and registered under Section 302, I. P. C. Narain Panda P. W. 12 was the person from whom Lal Khan had got the report written of the incident scribed. 8. The investigation of this case was conducted by P. W. 8 Bhawar Pal Singh, S. I. He had immediately started investigation and on 26-4-76 he had recorded the statement of Lal Khan and Munna etc. He sent Lal Khan injured to the hospital on 27-4-76. The Investigating Officer recorded the statement of Maqsood and inspected the place of occurrence and prepared the site-plan thereof. He found blood lying at the place of occurrance from where he took samples of blood stained and unstained earth. 9. P. W. 9, R. K. Gupta, S. I. had gone to Mission Hospital on 2-5-76 and took dead body of Lal Khan in possession. He prepared inquest report of the said dead body. 10. The appellants in their statements denied the case of the prosecution. Udal appellant further stated that at the time of the election of the office of Chairman there were sixty votes of his own family and forty more voters were also under his influence. One Ansar wanted that he should get all those votes voted in his favour but on his own part he was supporting Rakeshpal. He further stated that on account of the same one day prior to the incident there was exchange of abuses between him and Ansar, who got him falsely implicated in this case. D. W. 1 Rakeshpal Singh and D. W. 2 Abdul Hameed were examined in defence. 11. The learned trial court has believed the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellants as aforesaid. Aggrieved by the same, the appellants have filed these appeals. 12. We have heard the learned counsel for the appellants and the State and have perused the record carefully. 13. 11. The learned trial court has believed the case set up and the evidence produced by the prosecution and has accordingly convicted and sentenced the appellants as aforesaid. Aggrieved by the same, the appellants have filed these appeals. 12. We have heard the learned counsel for the appellants and the State and have perused the record carefully. 13. In this case the dying declaration of Lal Khan deceased was recorded by the Sub-Divisional Magistrate, Kasganj on 26-4-76 at 10. 30. p. m. , i. e. within three hours of the incident. P. W. 5 Sri M. L. Kadam was the Sub-Divisional Magistrate, Kasganj. He has deposed that on receiving an information from Dr. K. S. Yadav, he had gone to the hospital where he had recorded dying declaration of Lal Khan on 26-4-76 at 10. 30 p. m. He further stated in his evidence that at the time of recording of the dying declaration none was present by the side of Lal Khan. He had also satisfied himself that Lal Khan was mentally fit to give the statement. In this respect he had also taken a certificate from Dr. K. S. Yadav. P. W. 4 Dr. K. S. Yadav has also stated in his evidence that as the condition of Lal Khan was serious, hence he had sent a word to the S. D. M to corns and record his dying declaration on which Mr. M. L. Kadam, S. D. M. had come and recorded the dying declaration of Lal Khan. He further deposed that the said time Lal Khan injured was conscious and was fit to make a statement. It may be observed that in his said dying declaration Lal Khan gave the name of his father and stated that he was resident of Bilram and that he was struck a knife by Shayaq Ali at 6. 30 p. m. when Udal had caught hold of his hands. He stated that he was given one knife blow by Shyaq Ali, who was son of Bhullan. He also stated that both the assailants were residents of Bilram. 14. As already observed, the aforesaid dying declaration was recorded without delay in the same night when Lal Khan was conscious and mentally lit. There was no one by his side, who could prompt him to make the statement against the appellants. He also stated that both the assailants were residents of Bilram. 14. As already observed, the aforesaid dying declaration was recorded without delay in the same night when Lal Khan was conscious and mentally lit. There was no one by his side, who could prompt him to make the statement against the appellants. Both P. W. 5 M. L. Kadam, S. D. M. and P. W. 4 Dr. K. S. Yadav were government servants. They were independent witnesses. There was no suggestion of their affinity for the prosecution side of any enmity with the appellants. The aforesaid dying declaration made by Lal Khan was consistent and coherent. The incident had taken place in the evening before it had become dark. He had thus full opportunity to see and recognise the assailants who had come close to him so much so that one of the assailants had caught hold of him and the other assailant had given him a knife blow in the front. The said dying declaration finds support from the medical evidence as well. 15. Great solemnity and sanctity is attached to the words of a dying may because a person at the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. There can be no doubt regarding the pro position that if the statement of the deceased has been made voluntarily without tampting or prompting, is coherent, and consistent, the deceased had clear oppor tunity to observe and identify his assailants and his statement was made at a time when he was mentally fit and alert then conviction can be founded solely on such a declaration. See K. Ramchandran Reddy & Ors. v. Public Prosecutor, AIR 1976 SC 1994 and Kusa and others v. State of Orissa, AIR 1980 SC 559 . 16. To repeat, we are of the opinion and in this case Lal Khan had made the aforesaid dying declaration voluntarily. He had not been prompted by any body to make such a statement before the S. D. M. He had full oppor tunity to see and recognise his assailants. Dying declaration made by him was consistent and coherent. 16. To repeat, we are of the opinion and in this case Lal Khan had made the aforesaid dying declaration voluntarily. He had not been prompted by any body to make such a statement before the S. D. M. He had full oppor tunity to see and recognise his assailants. Dying declaration made by him was consistent and coherent. We thus find that the said dying declaration was true and the conviction of the appellants could be made solely on the basis of the said dying declaration made by Lal Khan before the Sub- Divisional Magis trate, Kasganj. 17. The learned counsel for the appellants has referred to us the dying declaration recorded by the S. D. M. and has pointed out that the certificate of the doctor that Lal Khan was in a fit state of mind to make the statement was given in the end after the statement of Lal Khan had been recorded. He has urged that the said certificate should have been given by the doctor before the dying declaration of Lal Khan was written. In our view the said argument is without merit because all that has to no determined is whether Lal Khan was mentally fit and alert at that time when the S. D. M. recorded his dying declara tion. It is not the question as to whether the doctor had endorsed the certificate about the mental condition of Lal Khan either before or after the recording of his state. In this respect Sri M. L. Kaden P. W. 5 has stated that firstly he had satisfied himself that Lal Khan in a fit condition to make the statement. He further deposed that before recording the statement he had satisfied himself from the doctor that Lal Khan was conscious and that he was mentally alert to make the statement and that when he had recorded the statement of Lal Khan he had then obtained the aforesaid certificate of the doctor on the said dying declaration. P. W. 4 Dr. K. S. Yadav had also stated in his evidence that at the time when dying declaration of Lal Khan was recorded he was mentally fit to make the said statement. P. W. 4 Dr. K. S. Yadav had also stated in his evidence that at the time when dying declaration of Lal Khan was recorded he was mentally fit to make the said statement. In our view, when as a matter of fact Lal Khan was conscious and was mentally alert when his dying declaration was recorded it did not make any difference if the certificate of the doctor is written after the said dying declaration had been recorded. 18. Besides the aforesaid dying declaration recorded by the S. D. M. the prosecution had relied upon two other statements made by Lal Khan decea sed, i. e. one made in the shape of F I. R. and the other made before the Investigating Officer under Section 161, Cr. P. C. and asserted that the same too were admissible under Section 32 of the Evidence Act is dying declaration with regard to the statement made in the shape of first information report, it may be observed that P. W. 12 Narain Panda, who was the scribe of the written report but turned hostile, had stated that he had not written the said report on the dictation of Lal Khan but had done the same on the dictation of Mian. The learned trial court has given good reasons for taking a view that the statement of P. W. 12 Narain Panda was false. Any way we are of the opinion that even if by way of abundant caution the dying declaration in the shape of first information report is discarded the same does not make much difference because, as already observed, the statement made by Lal Khan before the Sub-Divisional Magistrate was by itself sufficient to prove the guilt of the appellants. However, it may be observed that the version given in the first information report as well is not contrary to the dying declaration made by Lal Khan before the Sub-Divisional Magistrate. 19. The learned trial court has not placed reliance upon the statement of Lal Khan deceased recorded under Section 161, Cr. P. C. and has not treated the same as the dying declaration because the same was not got signed by any witness. We are not in agreement with the said view taken by the learned Sessions Judge because the Investigating Officer had taken the aforesaid statement of Lal Khan under the provisions of Section, 161 Cr. P. C. and has not treated the same as the dying declaration because the same was not got signed by any witness. We are not in agreement with the said view taken by the learned Sessions Judge because the Investigating Officer had taken the aforesaid statement of Lal Khan under the provisions of Section, 161 Cr. P. C. At that time he had not recorded the statement of Lal Khan as a dying declaration. It is a different matter that when subsequently Lal Khan expired the said statement, recorded by the Investigating Officer, has become a dying declaration. Any way, we are of the view that when in this case dying declaration of Lal Khan was properly recorded by a Magistrate it is not material as to whether the statement made before the Investigating Officer is given weight. It will, however, sufficient to state here that the statement made by Lal Khan before the Investigating Officer also does not contradict the version given by Lal Khan in his dying declaration made before the Sub-Divisional Magistrate. 20. Although the case of the prosecution was well proved and made out against the appellants solely from the dying declaration made by Lal Khan before the Sub-Divisional Magistrate, yet the prosecution has also produced direct evidence, which makes out the case against the appellants. 21. P. W. 2 Munna is an eye-witness, who lives in the same village at a distance of about 2-2-1/2 fourlongs from the place of occurrence. He had deposed that at the time of the incident he was sitting in the shop owned by Nanhey Khan but run by Nirala as a tenant. According to him this incident took place at 7. 30 p. m. when there was still day light. This witness had deposed that he heard the cries of Lal Khan when he saw Udal appellant holding Lal Khan in his grip and Shayaq Ali, appellant, giving him knife blow. He further deposed that Chhotey and Maqsood had also come to the place of occurrence and thereafter the appellants had run away. This witness has given details of the incident. His evidence is consistent. There is no discrepancy in his evidence with regard to any material detail of the incident. He has with stood the cross-examination well. He is an independent witness. In our view, the learned lower court has rightly believed his evidence. 22. This witness has given details of the incident. His evidence is consistent. There is no discrepancy in his evidence with regard to any material detail of the incident. He has with stood the cross-examination well. He is an independent witness. In our view, the learned lower court has rightly believed his evidence. 22. The learned counsel for the appellants has taken us through the evi dence of D. W. 2 Abdul Hamid and has urged that there was no shop in the house of Nanhey Khan, which was being run by Nirala. In our opinion, the said argu ment has got no force as D. W. 2 Abdul Hameed could not be believed in this respect because the Investgating Officer at the time of his local inspection found the shop in the house of Nanhey Khan and had shown the same in the site plan. The Investigating Officer was not cross- examined on the said point. We are thus satisfied that there was a shop in the house of Nanhey Khan and that Munna P. W. 2 was sitting there at the time of the occurrence, as alleged by him. 23. The learned counsel for the appellants has taken us through the evidence of P. W. 2 Munna as well and has tried to urge that the evidence of this witness did not lend to show that Lal Khan was firstly taken to the hospital was then taken to the police station. In our opinion, the said argument is without substance because the record shows that firstly Lal Khan was taken to the police station, where he was given a chitthi majroobi, which was then handed over at the hospital. It may be observed that it was on the said chitthi mazroobi that Dr. K. S. Yadav had recorded the injuries of Lal Khan. In the said chhitthi mazroabi the crime number of the case was written. In our opinion the said chitthi mazroobi could have been given only after the case had been registered. Therefore, we are satisfied that firstly Lal Khan was taken to the police station and it was from there he was sent to the hospital. In this context it may be relevant to point out that Dr. In our opinion the said chitthi mazroobi could have been given only after the case had been registered. Therefore, we are satisfied that firstly Lal Khan was taken to the police station and it was from there he was sent to the hospital. In this context it may be relevant to point out that Dr. K. S. Yadav had wrongly noted in his injury report that he had examined the injuries of Lal Khan on 26-4-76 at 8 p. m because when the case itself had been registered at 8. 30 p. m. and it was only thereafter that Lal Khan was sent for medical examination there was no question of the injuries of Lal Khan being recorded by the doctor at 8 p. m. It is, therefore, obvious that the time of 8 p. m. noted by the doctor was wrong. 24. The learned counsel for the appellants has argued before us that Munna P. W. 2 was not present at the police station and that is why he wrongly stated in his evidence that they had stayed at the police station for 1/2-3/4 hours and at the hospital for 1/2 hours and it was only thereafter that the injured was shifted to Mission Hospital. It may be noted that Lal Khan was admitted at the Mission Hospital on 26-4-76 at 11o clock in the night. In our opinion, the aforesaid duration of staying of Lal Khan at Police Station Kasganj was just rough estimate which seems to be wrong. No imoprtance can be attached to the same because Munna P. W. 2 was just a labourer and an illiterate person. All that can be said is that he had no exact idea of timing. As regards the presence of P. W. 2 Munna it may be noted that immediately after this case had been registered at P. S. Kotwali on 26-4-1976 statement of P. W. 2 Munna was recorded by the Investigating Officer. In our view the same could have possibly been done only if Munna P. W. 2 had come with Lal Khan to the police station and he was present there at that time. In our view the same could have possibly been done only if Munna P. W. 2 had come with Lal Khan to the police station and he was present there at that time. This fact that Munna P. W. 2 had immediately accompanied Lal Khan and had come to the Police Station lends support to the version of P. W. 2 Munna that he was also present at the time and place of occurrence to witness this incident. 25. The learned counsel for the appellants has also urged before us that as against his statement before the Investigating Officer that he had simply heard regarding the quarrel, which had taken place between the appellants and Lal Khan a few hours before this incident, he stated before the trial court that the said incident took place in his presence. It may be noted that this witness had not stated anything about the previous incident in his examination-in-chief and inquiry with regard to the same was made in the cross-examination only. The previous incident was not material for the decision of this case because this is a case where direct evidence was available and also where the dying declaration of Lal Khan had been recorded by the Magistrate. In result, therefore, we are of the opinion that P. W. 2 Munna can be believed and relied upon. 26. The learned counsel for the appellants has urged before us that the case of the prosecution was belied because P. W. 3 Maqsood had not supported the same. In our view, the said argument is without merit. It is true that P. W. 3 Maqsood turned hostile but it may be noted that he supported the case of the prosecution in material details inasmuch as he admitted that this incident took place at 7. 30 p. m. , even when there was still day light. He further admitt ed that when he came to the place of occurrence he found the accused persons running towards east and Lal Khan was lying injured at the spot. He also stated that at the spot he was told by the persons present that whereas Udal appel lant had taken Lal Khan in his grip Shayaq Ali had given him a knife blow. He also stated that at the spot he was told by the persons present that whereas Udal appel lant had taken Lal Khan in his grip Shayaq Ali had given him a knife blow. In our view, the case of the prosecution is not belied from the evidence of P. W. 3 but on the other hand the case of the prosecution gets support in material details from his evidence. 27. In view of that has been said and discussed above we are of the opinion that the guilt of both the appellants was made out beyond reasonable doubt from the dying declaration made by Lal Khan before the Magistrate, duly corroborated by the medical evidence and direct evidence given by P. W. 2 Munna. 28. In the end the learned counsel for the appellant Shayad Ali has urged before us that at best this case fell under section 304 Part-II IPC, and not under section 302,1. P. C. we find merit in the said argument. It may be noted that Shyaq Ali, appellant was aged about 22 years at the time of incident. A few hours before this incident a quarrel had taken place between him and Lal Khan deceased. At the time of the incident this appellant had not given to Lal Khan blow after blow which he could had done had his intention been to murder Lal Khan. He had simply struck Lal Khan with a knife once and thereafter he himself voluntarily discontinued giving any knife blow to him. None of the doctors examined in this case either in the injury reports or in their evidence has stated that the aforesaid injury sustained by Lal Khan was sufficient in the ordinary course of nature to cause his death within the meaning of clause (3) of Section 302, I. P. C. Lal Khan had not died instantaneously but he had expired six days after the incident, i. e. , on 2-5-1976. The cause of the death was said to be septicaemia. Taking all these facts and circumstances into consideration we are of the opinion that this case was covered by Section 304 Part-II I. P. G. for which sentence of five years. R. I. to Shayaq Ali shall meet the ends of justice. 29. The cause of the death was said to be septicaemia. Taking all these facts and circumstances into consideration we are of the opinion that this case was covered by Section 304 Part-II I. P. G. for which sentence of five years. R. I. to Shayaq Ali shall meet the ends of justice. 29. The learned counsel for the appellant Udal, on his part has urged before us that when Shayaq Ali was not carrying knife openly Udal appellant could not have known that Shayaq Ali would attack and cause injuries to Lal Khan with a knife and, therefore, no case, whatsoever, was made out against Udal. He has also argued that in no view of the matter Udal appellant could be held guilty for an offence other than the offence under Section 323/34,1. P. C. We find no force in the said argument. Udal appellant is the man who in the accompany of Shayaq Ali appellant had quarrelled with Lal Khan a few hours prior to this incident. He had then come along with Shayaq Ali near the house of Lal Khan and had called him out of the house. Then Udal appellant had taken Lal Khan in his grip whereafter along Shayaq Ali attacked his victim with knife. Had Udal appellant released Lal Khan from his hold Shyaq Ali would not have been in a position to give the knife blow to him in his abdomen. Udal appellant had not been holding Lal Khan for pleasure. Both the appellants after the previous incident had come to the house of Lal Khan to attack him. The manner in which Lal Khan was attacked and given knife blow by Shayaq Ali appellant sufficiently shows that Udal appellant shared his intention to cause culpable homicide of Lal Khan. Any way, when the Government his not filed any appeal we cannot convert the conviction of Udal appellant from Sections 326/34 IPC. to Section 304 Part II I. P. C. Therefore, the conviction and sentence of Udal appellant under Sections 326/34 I. P. C. is liable to be maintained. 30. Criminal appeal No. 855 of 1978 (Shayaq Ali v. State) is partly allowed and the offer under appeal is modified to this extent that instead of Sec tion 302 I. P. C. Shayaq Ali appellant is convicted under Section 304, Part II I. P. C. and is sentenced to five years R. I. thereunder. 30. Criminal appeal No. 855 of 1978 (Shayaq Ali v. State) is partly allowed and the offer under appeal is modified to this extent that instead of Sec tion 302 I. P. C. Shayaq Ali appellant is convicted under Section 304, Part II I. P. C. and is sentenced to five years R. I. thereunder. He is on bail. He shall be taken into custody forthwith so that he may serve out the sentence of five years. R. I. imposed on him. 31. Criminal Appeal No. 756 of 1978 (Udal v. State) is dismissed. Conviction and sentence of Udal appellant under Sections 326/34 IPC. , are upheld. He is on bail He shall be taken into custody forthwith so that he may serve out sentence of four years R. 1. already imposed on him. Order accordingly. .