( 1 ) KHUSHALI has preferred this appeal against his conviction and sentence u/s. 302 read with S. 34, IPC to life imprisonment passed by Sri V. V. Singh, the then Addl. Sessions Judge, Aligarh by his judgment dated 6-10-1979. ( 2 ) PROSECUTION case in brief is that the appellant Khushali was wanted in a dacoity case and he was absconding, hence under S. 87/88, Cr. P. C. his belongings were attached and given in the Supurdgi of deceased Narain who was a distant uncle of appellant Khushali. Smt. Jaidevi wife of Teja, after her husbands death she had developed illicit intimacy with Narain deceased, who also used to cultivate the land of Smt. Jaidevi. Hence Khushali bore ill will towards the deceased which was further bolstered when his belongings after attachment were taken in his supurdgi by Narain deceased. It is said that the appellant had sent threats to Narain to return his goods to him otherwise he would teach him a lesson. The incident is alleged to have taken place on 18-12-1964 at about 5 a. m. in the town of Khair District Aligarh. According to the prosecution Smt. Jaidevi and Khushali approached the house of Narain and knocked the door and on Smt. Jaidevi asking the deceased to open the door, the same was opened and Narain came out with a burning earthen lamp in his hand, immediately thereupon Khushali is alleged to have inflicted knife injuries to Narain. On hearing the alarm raised by the deceased his brother Luxman, Bhudeo and Gowardhan neighbours arrived. Ramji Lal, village Chaukidar as well as Farid Khan also arrived. On seeing the witnesses Khushali made good his escape, while Smt. Jaidevi was apprehended on the spot. Immediately thereafter FIR of the occurrence was lodged by Luxman at 5-30 a. m. at P. S. Khair at a distance of about three furlongs, on the basis of which case u/s. 307 IPC against Khushali and Jaidevi was registered. The injured was taken to the hospital where his injuries were examined by Dr. R. C. Vedi at 6 a. m. and he noted the following injuries on his person :-1. INCISED punctured wound 11/4" X 1/3" (middle) x abdominal cavity deep on front of right side anterior abdominal wall. Out of the wound 4" of mesentery is plolapring. Wound is profusely bleeding, no clothes. R. C. Vedi at 6 a. m. and he noted the following injuries on his person :-1. INCISED punctured wound 11/4" X 1/3" (middle) x abdominal cavity deep on front of right side anterior abdominal wall. Out of the wound 4" of mesentery is plolapring. Wound is profusely bleeding, no clothes. Situated 21/2" above the umblicus and 1/2" to the right of middle. 2. Incised wound 2/ 3" x 1/8" x muscle deep on the back of middle third of left fore-arm. 3. Incised wound 1/2" x 1/6" x skin deep on the front of left arm 11/2" above the elbow. 4. rasion 1/2 " x 1/4" on the back of left hand. 5. incised punctured wound vertical 1/2" x 1/4 " x abdominal cavity deep on left side back in the lumber region 2" above the iliac crest and 2" left of spine wound is profusely bleeding. 6. Incised punctured wound 11/2" x 1/2" x chest cavity deep on left side back 31/2" below the inferior angle of left scapula and 4" left of spine. Portion of muscle and fascia plolapring. 7. Two abrasions 1/2" x 1/4" each on the front of left and right knees. ( 3 ) DR. Vedi had also informed the police and requested the Tehsildar to record the dying declaration through letter (Ex. Ka-24), but he was not available, hence he himself recorded the statement (Ex. Ka-25) of Narain, who subsequently succumbed to his injuries when he was sent to Aligarh Hospital in the way. On receipt of information of the death at P. S. Kotwali at 11 a. m. S. I. Ram Charan Singh reached bus stand and prepared the inquest report. His dead-body was sent for post-mortem and Dr. K. C. Dubal on 18-12-1964 had done the autopsy, prepared the postmortem report (Ex. Ka-26) and noted as follows : ante- mortem Injuries:1. Stitched wound (on opening) punctured wound with incised margin 11/2" X 1/4" x abdominal cavity deep right side abdomen 21/2" above umblicus. 2. Abrasion 1/2" x 1/4" right wrist back outer portion. 3. Punctured wound with incised margin 1/4" x 1/8" x bone deep left arm and other portion. 4. Punctured wound with incised margin 3/4" x 1/8" muscle back left forearm and inner portion. 5. Abrasion 1/2" x 1/ 6" x back left hand. 6. 2. Abrasion 1/2" x 1/4" right wrist back outer portion. 3. Punctured wound with incised margin 1/4" x 1/8" x bone deep left arm and other portion. 4. Punctured wound with incised margin 3/4" x 1/8" muscle back left forearm and inner portion. 5. Abrasion 1/2" x 1/ 6" x back left hand. 6. Stitched wound (on opening) punctured wound with incised margin 1, 3/4" x 3/4" chest cavity deep back left side lower anterior portion. 7. Stitched wound (on opening) punctured wound with incised margin (P. torn) abdominal cavity (paper torn) back. . . . . . . . . . . . . (p. torn ). ( 4 ) ON internal examination left lung was found punctured. Peritonium, stomach, both the intestines and liver were found ruptured. In the opinion of the Doctor death was caused due to shock and haemorrhage about eight hours prior to 5 p. m. on 18-12-1964. ( 5 ) THE appellant Khushali had absconded, hence earlier Smt. Jaidevi was tried found guilty and convicted for the offence u/s. 302 read with S. 34, IPC, subsequently after arrest of the present appellant he was tried and to prove its case prosecution examined in all fourteen witnesses, of whom P. W. 1 Ramji Lal, Chaukidar, P. W. 2 Gowardhan, P. W. 3 Farid Khan are the witnesses of the occurrence. P. W. 4 Ram Singh is son of Narain deceased. P. W. 13 Dr. R. C. Vedi had examined the deceased when he was brought injured at the P. H. C. and thereafter recorded his statement before death (Ex Ka-25 ). P. W. 14 Dr. K. C. Dubal had done the autopsy. Besides these, Investigating Officer one other formal witnesses were examined. Version of the appellant has been that he has been falsely implicated. He denied that he was the absconding, but admitted that attachment of his properties had taken place in his absence and alleged that he has been falsely implicated. The learned trial Judge believed the prosecution evidence, hence convicted and sentenced the appellant as above. On being aggrieved, this appeal has been preferred. It was urged that the prosecution evidence on record was not worthy of credence. The learned trial Judge believed the prosecution evidence, hence convicted and sentenced the appellant as above. On being aggrieved, this appeal has been preferred. It was urged that the prosecution evidence on record was not worthy of credence. ( 6 ) THE occurrence had taken place early in the morning at about 5 a. m. It was, therefore, argued that it was very doubtful that any of the witnesses could be present at the scene of occurrence; that some one might have come in the dark and might have attacked him. From the statement of the Investigating Officer (P. W. 12) Inspector Ram Babu Sharma, who had done the investigation it is clear that the FIR was dictated in his presence and recorded; that he had gone to the scene of occurrence on the same day, prepared the site plan (Ex. Ka-14), recovered blood-stained and sample earth from there. Thereafter he had gone to the hospital and by that time the Doctor had already recorded the statement and as the Doctor told him that the patient was conscious he had also recorded the statement (Ex. Ka-15) and that immediately thereafter he had sent the deceased to the District Hospital Aligarh for treatment when on reaching there he died. He has also stated that on the spot he had found one burning earthen lamp and had recorded the statement of the witnesses. In his cross-examination the fact that the authenticity of the site plan, recovery of the blood on the scene of occurrence as shown therein and taking in possession of the burning earthen lamp were not challenged. From the map it is clear that he found blood on the door of the house and not inside the house which fully corroborates the prosecution case that when the deceased came out of the house with an earthen lamp then he was attacked. To that effect there is evidence of P. W. 1 Ramji Lal Chaukidar that after his beating in the night when he was going to ease himself on hearing alarm he reached the house of the deceased and saw that an earthen lamp was burning there and also Khushali was inflicting knife blows to Narain, Smt. Jaidevi was also there; that he himself and other persons apprehended Jaidevi. However, Khushali managed to make good his escape. Thereafter he and Luxman had taken Jaidevi to the police station. However, Khushali managed to make good his escape. Thereafter he and Luxman had taken Jaidevi to the police station. He also stated that Luxman and Bhudeo had died and, therefore, their testimony could not be recorded. The fact that the contents of the FIR dictated by Luxman were the same as dictated by him has been proved by S. I. Jagdish Prasad Pandey (P. W. 10) who was then posted as Head Moharrir at P. S. Khair and had recorded the FIR and thereafter entered the case in the G. D. That apart, his statement remains unchallenged and, therefore, there is no reason to doubt the veracity of his statement that he had correctly recorded whatever was stated by Luxman. ( 7 ) P. W. 2 Gowardhan has also deposed that on hearing the alarm he had reached the house of Narain and then saw that Khushali was inflicting knife blows to Narain, while Jaidevi was standing outside there. On seeing him and other persons Khushali took to his heels, while Jaidevi was apprehended. He also stated that Jaidevi was Bhabbi of the appellant. He also stated that his house was only at a distance of twenty paces from the house of the deceased. That there was also moon light. The occurrence had taken place on 17-12-1964 while the statement of this witness was recorded after more than thirteen years on 18-7-1978. He admitted that in the mean time his eyes and ears had become defective. Neither he could see nor hear. ( 8 ) LASTLY, P. W. 3 Farid Khan has also stated that along with the Chaukidar he had also reached there and saw the appellant escaping with a knife; that he and Ramji Lal tried to apprehend the appellant, but could not succeed, while Jaidevi was apprehended on the spot. He also stated that because the Chaukidar was pursuing him he had also run after him and he did not see his face. Even if his testimony on that count is ignored, there remains testimony of P. W. 1 Ramji Lal Chaukidar and P. W. 2 Gowardhan coupled with dying declaration (Ex. Ka-25) recorded by Dr. R. C. Vedi. The statement of the deceased (Ex. Ka-25) is as follows: "mera Naam Narain putra Girwar Aayu Qarib 55 Saal, Kachhi Sakin Mohalla Sharafan Khair Ka Rahne Wala Hun. Mai Issamai Hosh Men Hun. Atah Sab Kuchh Samajhta Hun. Ka-25) recorded by Dr. R. C. Vedi. The statement of the deceased (Ex. Ka-25) is as follows: "mera Naam Narain putra Girwar Aayu Qarib 55 Saal, Kachhi Sakin Mohalla Sharafan Khair Ka Rahne Wala Hun. Mai Issamai Hosh Men Hun. Atah Sab Kuchh Samajhta Hun. Mai Apne Ghar Ke Kothe Men So Raha Tha Ki Aaj Subah koi Paanch Baje Mere Kothe Par Darwaza khatakane Ki Aawaz Hui Aur Mujhse Aawaz De Kar Darwaza Khulwane Ko Kaha. Aawaz Teja Kachhi Ki Aurat Ki Thi. Maine Diya Jalaya Aur Darwaza Khola. Darwaza Kholne Par Maine Dekha Teja Ki Bahu Aur Khushali Kachhi Bahar Tha. Khushali Kachhi Ne Mujhe Pakar Liya Aur Chaqu Se Kai Jagah Mara. Maine Khushali Ko Aur Teja Ki Aurat Ko Diye Ki Roshani Men Pachan Liya Tha. Maine Shor Machaya Aur Shor Par Luxman, Gowardhan, Bhudeo Aur Dusre Bahut Se Mohalle Ke Aadmi Aagaye. Mujhe Sidhe Aspatal Le Aaye llaj Ke Liye. Maine Sab Sun Kar Tasdiq Kiya, Sab Theek Hai. Mai Hosh Men Hun Aur Sab Kuchh Samajhta Hun. L. T. I. Narain (It contains a note of Dr. Vedi)that this dying declaration was recorded by him because Tehsildar II Class Magistrate was out of town. He further certified that the injured Narain son of Girwar was in full senses and capable of giving dying declaration. The dying declaration also bears the thumb impression of the deceased and it is further apparent that the statement made by him was readover to him and he after fully understanding it put his thumb impression. It is true that a dying declaration should have been recorded by a Magistrate, but Dr. Vedi first sent for the Magistrate and when it was reported that he was out of town, he himself was most capable and authorised person to record the same. In his cross-examination Dr. R. C. Vedi (P. W. 13) has further maintained as he apprehended that the injuries could result into the death of the deceased. He had sent for the Magistrate to record his dying declaration. No suggestion was made in his cross-examination on behalf of the defence that he had not recorded correctly whatever was stated by the deceased or that the deceased was not in a position to make the statement as recorded by him. Under the circumstances this dying declaration of the deceased is itself sufficient to base conviction of the appellant. No suggestion was made in his cross-examination on behalf of the defence that he had not recorded correctly whatever was stated by the deceased or that the deceased was not in a position to make the statement as recorded by him. Under the circumstances this dying declaration of the deceased is itself sufficient to base conviction of the appellant. ( 9 ) THAT apart, there is also evidence on behalf of the prosecution of Gowardhan (P. W. 2) whose presence at that time has been mentioned in the dying declaration corroborating the fact that he had seen this appellant inflicting knife blows and Jaidevi was apprehended at that place. The other two witnesses, namely, Luxman who had lodged the FIR and Bhudeo had died when the trial of this appellant had taken place. Smt. Jaidevi who was apprehended on the spot was tried earlier and has been convicted and sentenced under Section 302 read with Section 34, I. P. C. This appellant had absconded and was apprehended after about thirteen years and in the mean time these two eye witnesses had died. ( 10 ) THE conclusion, therefore, is that there is sufficient clinching evidence to bring home guilt to the appellant beyond reasonable doubt. His conviction is to be maintained. The present appellant alone had inflicted fatal blows with the knife to the deceased. The learned triad Judge has convicted him under Section 302 read with Section 34 I. P. C He should have been convicted under Section 302, I. P. C. simpliciter. The law is well settled that the conviction all under Section 302, I. P. C. can be converted to one under Section 302/34, I. P. C. and vide versa, if no prejudice is caused to the accused appellant, vide W. Slaney v. State of M. P. , AIR 1956 SC 116 . In the present case in the charge as well as in the statement under Section 313, Cr. P. C. it was specifically put to the appellant that he had stabbed the deceased and the evidence is also to the effect that he alone had stabbed the deceased. Hence conviction of the appellant is altered from Section 302 read with Section 34, I. P. C. to Section 302, I. P. C. simpliciter and his sentence of life imprisonment is confirmed. He is in prison, he has to serve out the remaining sentence. Order accordingly. .