V. P. GOEL, J. Chhotey and Mohabbat Sher have preferred this appeal st the judgment and order dated 31-3-1979 passed by Sri Sachidanand, Sessions Judge, Sahajahanpur in Sessions Trial No. 316 of 1978, canvicting and sentencing each of the appellants to undergo imprisonment for life under Sec tion 302/34 I. P. C. The charge against the appellantss has been that they in furtherance of their common intention, committed the murder of Wilayat on 23-9-1977 at bout 12. 30 p. m. in the house of Wilayat situated in village Hauli Bauri, Police station Jalalabad, district Shahjahanpur, since the parties are closely related it will be material to give their pedigree. 2. Wilayat is elder brother of Mohabbat Sher and Chhote. Accused Chhote, who is elder to Mohabbat Sher, lived in a separate house. Accused Mohabbat Sher and deceased Wilayat lived in the same house. Two years before the date of occurrence, Wilayat deceased got recovered a pistol from the possession of accused Mohabbat Sher. At time of occurrencene Wilayat was keeping buffaloes and had troughs for feeding them. Accused Chhote got some buffaloes from his father-in-law. He insisted for feeding his buffaloes before those of Wilayats in those troughs. This insistance led to an altercation between Wilayat on one hand and Chhote and Mohabbat Sher on the other. In the midst of that altercation, Mohabbat Sher struck Wilayat with a knife and Chhote gave several blows to Wilayat with a lathi, some of them hit the head of Wilayat. On receiving the injuries Wilayat fell down unconscious and then the accused ran away. 3. Wilayat deceased was taken by his maternal uncle Salli, Gram Pradhan Daya Ram and one Kaptan to the Primary Health Centre at Jalala bad on his way to the Primary Health Centre, Wilayat gained consciousness. Dr. Rajesh Chandra Asthana (PW 3) medically examined Wilayat at 2. 20 p. m. and after admitting him in the hospital, the Doctor sent information to police station and also called the Sub- Divisional Magistrate of Jalalabad to record Wilayats dying declaration. 4. The Sub-Divisional Magistrate, atonce went to the Primary Health Centre in a Jeep. The Medical Officer certified that Wilayat was in a fit condition to make statement. The Sub-Divisional Magistrate Sri Umesh Kumar Mittal then recorded Wilayats statement (Ext. Ka-2) at 2. 50 p. m. on 23-9-1977. 5. 4. The Sub-Divisional Magistrate, atonce went to the Primary Health Centre in a Jeep. The Medical Officer certified that Wilayat was in a fit condition to make statement. The Sub-Divisional Magistrate Sri Umesh Kumar Mittal then recorded Wilayats statement (Ext. Ka-2) at 2. 50 p. m. on 23-9-1977. 5. After Wilayats statement was recorded he was sent to the District Hospital at Shahjahanpur, where he died at 7-40 p. m. in the evening at 23-9-1977. Doctor Rajesh Chandra Asthana who examined the injuries of Wilayat in a Primary Health Centre at Jalalabad, found following injuries on the body of Wilayat: 1. Lacerated wound 3 cm. x 0. 2 cm. x bone deep on the posterior aspect of the skull, 12. cm away from the right ear. 2. Lacerated wound 5 cm. X 0. 4 cm X scalp deep on the top of skull over the mid line, 12. cm above the right ear. 3. Contusion 3 cm. x 1. 5 cm on the right side upper part forehead, 4 cm above the right eye brow. 4. Contusion 4 cm x 2 cm on the posterior-lateral aspect of the right shoulder. 5. Abrasion 3 cm x 0. 4 cm on the posterior aspect lower part of right forearm, 7 cm. above wrist joint. 6. Incised wound 5 cm X 0. 1 cm x muscle deep on the medial aspect of the right hand. 7. Abraded contusion 8. 5 cm 3 cm on the anterior aspect of the left arm, 2 cm above the elbow joint. 8. Abraded contusion 21 cm x 1. 5 cm on the left side back, extending from middle of the shoulder blade to the lumber region. 9. Abraded contusion 9 cm X 2 cm on the left side back lumber region. 10. Multiple abrasion in an area of 7 cm x 5 cm on the right side chest just above sub-costal margins. 11. Contusion 9. 5 cm X 1 cm on the lateral aspect middle part of right thigh, 14 cm above the right knee. 12. Contusion 6 cm X 1 cm on the lateral aspect of the right leg. 13. Contusion 8 cm X 4 cm on the anterio, lateral aspect of the right leg, 1. 5 cm above injury No. 12. 14. Abraded contusion 5 cm x 1 cm on the anterio-lateral aspect of the left leg, 10 cm above ankle joint. 15. 12. Contusion 6 cm X 1 cm on the lateral aspect of the right leg. 13. Contusion 8 cm X 4 cm on the anterio, lateral aspect of the right leg, 1. 5 cm above injury No. 12. 14. Abraded contusion 5 cm x 1 cm on the anterio-lateral aspect of the left leg, 10 cm above ankle joint. 15. Contusions cm X 1 cm on the anterio-laterial as pect of the left leg. 16. Contusion 8 cm x 1 cm on the right buttock medial as pect. 17. Incised wound 5 cm X 2. 5 cm on the right laterial aspect of the abdomen, 1 cm below the sub-costal margin. The depth of the wound was not probed. Omentum and intestinal loop had come out of the wound. 6. Dr. B. C. Paul (PW 6) conducted post-mortem examination on the body of Wilayat on 24-9-1977 at about 5-15 p. m. who found the following ante-mortem injuries : 1. Lacerated wound 5 cm x 1/4 cm x bone deep on centre of skull. 2. Lacerated wound 4 cm x 1/4 cm x bone deep 8 cm. back to injury No. 1. 3. Abrasion 10 cm x 6 cm right side of chest lower part. 4. Abrasion 6 cm x 2 cm on the right side of chest 6 cm below the nipple. 5. Abrasion 15 cm x 2 cm on the left flank of abdomen, 4 cm above the iliac crest. 6. Bruise with abrasion, 5 cm X 3 cm, on left side of chest, 5 cm above nipple. 7. Bruise with abrasion, 5 cm x 1 cm, 8 cm below the apex of left axilla. 8. Abrasion 3 cm x 2 cm front of left arm, 3 cm above elbow. 9. Punctured wound 3 1/2 cm x 1 cm x abdomen cavity, right flank of abdomen 6 cm below the lower border of 12 the rig. Margins were clean cut. Omentum was protruding through the wound. 10. Abrasion 2 cm X 2 cm on front of left leg middle. 11. Abrasion 4 cm x 1 1/2 cm on left side of back, middle. In the opinion of the Doctor, Wilayat died due to shock and haemorrhage caused by external injury No. I and its connected internal injuries, which were found by him to be sufficient in the ordinary course of nature to cause his death. 11. Abrasion 4 cm x 1 1/2 cm on left side of back, middle. In the opinion of the Doctor, Wilayat died due to shock and haemorrhage caused by external injury No. I and its connected internal injuries, which were found by him to be sufficient in the ordinary course of nature to cause his death. He further opined that external injuries No. 1 and 2 noticed in the post- mortem examination and the internal injuries connected with it could have been sufficient in the ordinary course of nature to cause death. 7. A written first information report of the incident was lodged by Smt. Muradan wife of deceased Wilayat on 23-7-1977 at 2. 45 p. m. at the police station Jalalabad, on the basis of which, the Head Constable Jang Bahadur Sharma prepared a chick (Ext. ka-4) and registered a case under Section 307, I. P. C. against the appellants. On the next day i. e. 24-9-1977, the case was converted into one under Section 302,1. P. C. 8. To prove its case, prosecution examined six witnesses. Smt. Anwari (PW1) wife of deceased Wilayat, who is known as Smt. Muradan proved first information report (Ext. Ka-1 ). Sri Umesh Kumar Mittal, Sub- Divisional Magistrate (PW 2) was examined to prove the dying declaration (Ext. Ka-2), which was recorded by him at P. H. C. Jalalabad on 239-1977. Dr. Rajesh Chandra Asthana (PW 3), Medical Officer at P. H. C. , Jalalabad, had proved the certificate given by him on 23-9-1977 to the effect that Wilayat was in a fit state on mind to make statement, inasmuch as the dying declaration of Willayat had been recorded in his presence. Head Constable Jang Bahadur Sharma (PW 4) was examined to prove the first information report, registered by him and Dr. B. C. Paul (PW 6) had proved the post-mortem examination report conducted by him on the body of the deceased Wilayat. The prosecu tion had placed reliance on the dying declaration (Ext. Ka-21), recorded by the Sub-Divisional Magistrate, Jalalabad at about 2. 50 p. m. at P. H. C. Jalalabad, CW, 1, CW 2, CW 3 and CW 4 were examined as court witnesses under Section 311, Cr. The prosecu tion had placed reliance on the dying declaration (Ext. Ka-21), recorded by the Sub-Divisional Magistrate, Jalalabad at about 2. 50 p. m. at P. H. C. Jalalabad, CW, 1, CW 2, CW 3 and CW 4 were examined as court witnesses under Section 311, Cr. P. C. The Investigating Officer was examined a CW 4, who recorded the statement of Smt. Awsari and after recording it he proceeded to Primary Health Centre, Jalalabad, but he could record the statement of Wilayat as he was unconcious, he also prepared a site-plan Krishnal Pal Singh Rathore (CW 1) is a witness, who submitted charge-sheet against the appellants on 23-11-1977. 9. The Learned Chief Judicial Magistrate ommmitted the case to the court of Sessions under Section 302/34, I. P. C. Smt. Anwari (PW 1), wife of deceased, deposed that her husband was done to death by Mohabbat Sher and Chhote. According to her Mohabbat Sher was armed with a knife and Chhote was armed with a lathi. The defence of the appellants Chhote and Mohabbat Sher was revealed from their statement under Section 313, Cr. P. C. and the suggestion made on their behalf to the witnesses mentioned above was that they had struck at Wilayat in self-defence to save the life of their mother as Wilayat had caught hold of and began to strangulate her the accused-appellants did not examine any witness in their defence. 10. The learned Sessions Judge after considering the entire evidence on the record came to the conclusion that Salli was won over by the accused persons, who had been bailed out since long back. The pressure of the man of accused persons started sufficiently earlier on the witnesses and therefore he did not place reliance on them. Relying upon the dying declaration of Wilayat, the Sessions Judge convicted the accused persons. 11. We have scrutinised the statements of Smt. Anwari and CWs. , exami ned by the court and on the scrutiny of their statements, our conclusion is that Smt. Anwari was not present when the marpit started and she tried to help the accused persons in her cross-examination. Her evidence does not inspire confi dence and is liable to be rejected. Similarly Daya Ram (CW 3) and salli (CW 2) also tried to support the accused persons in their cross-examination to exo nerate the appellants. Her evidence does not inspire confi dence and is liable to be rejected. Similarly Daya Ram (CW 3) and salli (CW 2) also tried to support the accused persons in their cross-examination to exo nerate the appellants. The exonerating portion, which was added subsequently leads us to conclusion that it is an after thought and was added to help the accused Chhote and Mohabbat. Sher. The evidence of Salli and Daya Ram also does not inspire confidence and is liable to be rejected as unreliable. 12. Only evidence against the accused persons which remains for consi deration is the dying declaration (Ext. Ka-2) of Wilayat, recorded by Sub-Divi sional Magistrate at Primary Health Centre. Jalalabad on 23- 3-1977, at 2-50 p. m. The statement as contained in Ext. K. a-2 is produced in its original language : "mohabbat Sherwa Chhote jo usi gaon ke rahne wale hain tatha mere sage bhai hain tatha umra men chhote hain. Mere janwar marit hinand me nahi banan dete kyunki we khata hain pahle mere bhains nand me khayenge wad me turn apne bhainso ko khilana. Main tatha Mohabbat. Sher ek ghar me tatha Chhote alag ratha hai, Men tatha Mohabbat Sher ki nikasi ki ek hai tatha Chhote ki alag. Mohabbat Sher ne chaku mara tatha Chhote ne lathi mari. Bhainse Chhote ke sasur ke hain isliya Chhote ki ramjish is samay hui tathi Mohabbat Sher ka tamancha raaine 2 sale pahle pakda diya tha, isliye Mohabbat Sher bhi mujhse ranjish mants tha. Jab mujhe inhone mara us samay koi maujood nahi tha. Munh dar munh bat ho rahi thi gali meri ghar ke pas baithe bat ho rahi thi, bat hi bat men we dono ne mujh par hamla kar diya tatha mar kar bhag gaya. Main behosh hokar gir pada. Rastey men aane par mujhe hosh aya to mere sath Salli, Kaplan tatha Gram Pradhan Daya Ram mere sath tha. Mujhe aur kuchha nahi kahna hai meri Gram men kisi se iake alawa koi ranjish nahi hai. " 13. In the statement quoted above, Wilayat spoke of circumstance of the transaction which ultimately resulted in his death, later on the same day. The statement of Wilayat is his dying declaration which is relevant under Section 32 of the Evidence Act. 14. " 13. In the statement quoted above, Wilayat spoke of circumstance of the transaction which ultimately resulted in his death, later on the same day. The statement of Wilayat is his dying declaration which is relevant under Section 32 of the Evidence Act. 14. Under Section 32 (1) of the Indian Evidence Act, 1872, a statement made by a person who is dead as to the cause of his death or as to the circum stances of the transaction which resulted in his death is relevant fact in cases in which the cause of persons death comes into question, and such a statement is relevant whether person who made it was or was not, at the time when it was made under expectation of death, and whatsoever may be the nature of the proceedings in which the cause of his death comes into the question. The dying declaration of Wilayat is, therefore, relevent and material evidence in the case. We have scrutinised the evidence of Dr. Rajesh Chandra Asthana and the Sub-Divisional Magistrate, Jalalabad, carefully and in our opinion the dying declaration is truthful statement of Wilayat and is reliable and by itself is sufficient basis for conviction of accused persons. In the instant case the dying declaration is also corroborated by medical evidence and other circum stances of the case. 15. Dr. Rajesh Chandra Asthana (PW 3) has deposed that he was the Medical Officer at Primary Heatlh Centre, Jalalabad on 23-9-1977. He examined the injuries of Wilayat in the dispensary on the same day at about 2. 30p. m. and found 17 injuries on the person of Wilayat, out of which two were two incised wounds, one being on the palm and the other on the abdomen. He had immediately sent a memo to Sub-Divisional Magistrate Jalalabad, who was staying in the PWD Inspection House, for recording the dying declaration of Wilayat as his condition was serious. He gave certificate that Wilayat was in a fit condition to make dying declaration and the dying declaration was recorded in his presence. He proved the certificate given by him on the dying declaration. A suggestion has been made on behalf of accused persons by the counsel for the appellants that Wilayat was not in a fit condition to make dying declaration. The Doctor denied the same. We have scrutinised the statement of Dr. He proved the certificate given by him on the dying declaration. A suggestion has been made on behalf of accused persons by the counsel for the appellants that Wilayat was not in a fit condition to make dying declaration. The Doctor denied the same. We have scrutinised the statement of Dr. Rajesh Chandra Asthana carefully and in our opinion the statement reliable and truthful. PW 6 was the Sub-Divisional Magistrate on 23-9-1977 and was staying in the PWD Inspection House. He deposed that he had received memo from the Doctor at PWD Inspection House for recording the dying declaration of Wilayat at the Primary Heath Centre, Jalalabad, where he was lying in serious condition. He immediately proceeded to the hospital and recorded the dying declaration of Wilayat in the presence of Doctor. He has also deposed that the Doctor gave a certificate that Wilayat was in a fit condition to give statement and he himself was also satisfied that Wilayat was in a fit condition to give statement and he recorded the dying declaration (Ext. Ka-2) in the presence of Doctor. He was subjected to lengthy cross- examination, but nothing has been brought cut in his statement to discard his testimony. No enmity has been shown by the defence to discredit his to stimony which inspire confidence and is wholly reliable. There is no reason to disbelieved him. So far the defence of the accused persons is concerned, their case that they inflicted injuries to save the life of their mother is false and is liable to be rejected as they have not produced any evidence in support of their plea of self-defence. 16. So far the prosecution evidence is concerned, the witesses have been won-over by the accused persons, as stated above and no reliance can be placed on their evidence. They have deposed in favour of accused in respect of self-defence in the cross-examination and the exonerating part has been added in the cross-examination. We are convinced that it was an after thought which was added by the witnesses to help Chhote and Mohabbat Sher. After very careful consideration of the ease, we are of the opinion that dying declaration (Ext. Ka-2) made by Wilayat is sufficient evidence against the appellants which is corroborated by medical evidence. 17. After considering the evidence we are of the opinion that the dying declaration made by Wilayat (Ext. After very careful consideration of the ease, we are of the opinion that dying declaration (Ext. Ka-2) made by Wilayat is sufficient evidence against the appellants which is corroborated by medical evidence. 17. After considering the evidence we are of the opinion that the dying declaration made by Wilayat (Ext. Ka-2) is the only admissible evidence against the appellants to prove that Mahabbat Sher attacked deceased Wilayat with knife and Chhote inflicted lathi injuries to him and relying solely upon dying dealaration of Wilayat, we hold that the appellant are guilty of murder of Wilayat and have been rightly convicted under Section 302/34,1. P. C. 18. We accordingly dismiss the appeal and confirm the sentence imposed upon the appellants by the Sessions Judge. The appellants are on bail. Their bail bonds are cancelled and sureties discharged. They shall be taken into custody forthwith to serve out the sentences. Appeal dismissed. .