G. P. MATHUR, J. ( 1 ) PRABHAKAR has filed this appeal against his conviction under section 302, I. P. C. and sentence of life-imprisonment imposed by the learned Sessions Judge, Jaunpur, by his judgment and order dated 19. 4. 1979. His two real brothers, namely, Chandra Shekhar and Diwakar, and Kashinath, son of Ram Shiromani, were also tried along with him but they were acquitted. ( 2 ) THE case of the prosecution, in brief, is as under: Litigation regarding consolidation of holdings was going on between Ramdeo Dube (further of the appellant) and the first-informant Sukhdeo (father of the deceased) in the court of the Deputy Director of Consolidation, Jaunpur. On 27. 2. 1976 exchange of hot words took place between P. W. 6 Lorik (brother of Sukhdeo) and Ramdeoin Jaunpur in connection with the aforesaid case. Appellant Prabhakar and deceased Phool Chand were studying in the same school at Meerganj and their relations with each other had become highly strained. However, since a month before the incident both of them had become friendly. On 3. 3. 1978 at about 8 P. M. the appellant Prabhakar took the deceased Phool Chand towards north of the village on the pretext of attending the call of nature. Some time thereafter an alarm was heard on which Purshottam, Sheonath and Ram Adhar rushed there flashing their torches. In the light of torch they saw that a scuffle was going on between the appellant and the deceased and the remaining three accused, namely, Chandra. Shekhar Diwakar and Kashinath, were also assisting the appellant Prabhakar. The appellant assaulted the deceased with a Karauli in his abdomen who fell down after receiving the injury. The appellant then threw the Karauli and all the accused ran away from the spot. Sukhdeo also reached the place of occurrence but seeing the condition of his son he was greatly shocked and was brought to his house. Lorik P. W. 6 and others took the injured Phool Chand on a cot to Primary Health Centre, Suriawan. The condition of the victim was very serious and, therefore, after recording his dying declaration Dr. R. N. Tripathi (P. W. 13) advised that he should be taken to Varanasi for treatment. However, before Phool Chand could be admitted in a hospital at Varanasi he succumbed to his injuries. The condition of the victim was very serious and, therefore, after recording his dying declaration Dr. R. N. Tripathi (P. W. 13) advised that he should be taken to Varanasi for treatment. However, before Phool Chand could be admitted in a hospital at Varanasi he succumbed to his injuries. Meanwhile Sukhdeo got a First Information Report scribed by Radhey Shyam and lodged the same at 6. 05 A. M. . on 4. 3. 1978 at P. S. Meerganj. He was not aware that his son had died before reaching the Hospital at Varanasi and, therefore, the First Information Report was registered under section 307, I. P. C. He had also brought the Karauli with which the appellant had assaulted the deceased and the same was deposited at the police station. ( 3 ) THE investigation in the case was initially done by P. W. 14 Ambika Pande and after the case had been converted to section 302, I. P. C. the investigation was taken over by P. W. 11 Rang Nath Pan de who submitted charge-sheet against the four accused. The case was committed to the court of sessions where charge under section 302, I. P. C. was framed against the appellant. The prosecution in support of its case examined 14 witnesses including three eye-witnesses. The learned Sessions Judge believed the prosecution case and convicted and Sentenced the appellant as mentioned earlier. ( 4 ) APART from the direct testimony of the eye witnesses and the dying declaration of the deceased the prosecution has led evidence to show that the appellant had a motive to commit the crime. We may briefly examine the evidence adduced on the point of motive. P. W. 1 Sukhdeo has stated that litigation regarding consolidation of holding was going on between Ramdeo Dube (father of the appellant) and his brother Lorik (P. W. 6) in the court of Deputy Director of Consolidation and 27. 2. 1978 was the date fixed in the said case. On the said date exchange of hot words had taken place between Lorik and Ramdeo in the court. Lorik had great affection for the deceased Phool Chand who resided with him. Lorik also met the education expenses of Phool Chand. 2. 1978 was the date fixed in the said case. On the said date exchange of hot words had taken place between Lorik and Ramdeo in the court. Lorik had great affection for the deceased Phool Chand who resided with him. Lorik also met the education expenses of Phool Chand. He has further stated that initially the relations between Prabhakar and Phool Chand, who were class fellows, were highly strained but since a month before the incident Prabhakar had patched up the differences and had become friendly with him. P. W. 6 Lorik in his statement has corroborated P. W. 1 Sukhdeo and has further stated that Prabhakar and Kashinath were also present in the Court of the Deputy Director of Consolidation on 27. 2. 1978 and they had threatened to kill after the exchange of words had taken place. P. W. 7 Kailashnath Yadav has stated that at the time of the incident he along with Prabhakar and Phool Chand was studying in Class XI in Meerganj Inter College and some altercation had taken place between the appellant and the deceased in November, 1977. However, in February, 1978, the difference were parched up and they became friendly to each other. The statement of these witnesses show that litigation in consolidation court was going on between Lorik and Ramdeo and that exchange of hot words had taken place in the court on 27. 2. 1978. It is further revealed that the appellant and the deceased were studying in the same class and in the same college and their relations had become quite strained few months before the incident though later on the appellant patched up the differences. Therefore the evidence on record shows that the appellant had a motive to commit the crime. ( 5 ) NOW coming to the main incident P. W. 1 Sukhdeo has stated that at about 8 in the night he was sitting at his door along with Phool Chand deceased. The appellant came and asked Phool Chand to go for attending the call of nature. Phool Chand then went along with the appellant towards northern side and after about ten minutes he heard his alarm. He rushed there and found Phool Chand lying seriously injured in the wheat field of Girdhari. The statement of P. W. 1 Sukhdeo has not been shaken in his cross examination. Phool Chand then went along with the appellant towards northern side and after about ten minutes he heard his alarm. He rushed there and found Phool Chand lying seriously injured in the wheat field of Girdhari. The statement of P. W. 1 Sukhdeo has not been shaken in his cross examination. It is an important piece of evidence to connect the appellant with the crime in question as it shows that he was along with the victim shortly before the witnesses say the latter in an injured condition. ( 6 ) THE prosecution has examined three witnesses who have given direct testimony of assault made upon the deceased by the appellant. P. W. 3 Purshottam and P. W. 4 Sheo Nath have stated that both of them had reached near the north-eastern corner of the pond situate towards north of the village at about 8 PM for attending the call of nature. After hearing the alarm they rushed towards the wheat field of Nirhu flasing their torches and saw that a scuffle was going on between the appellant, who was armed with a knife, and deceased. The other three accused were also present there and were helping the appellant. The deceased wanted to save himself due to which he received injuries on his hand. The appellant gave blow by the knife on the abdomen of the deceased due to which he fell down in the field of Girdhari. The appellant then threw the knife and all the assailants ran away from the place of occurrence. P. W. 2 Ram Adhar has stated that he was at his house. At about 8 PM he heard an alarm and he rushed flashing his torch and saw the appellant giving knife blow in the abdomen of the deceased while as the other three accused were also present on the spot and were helping the appellant. The appellant then threw the knife and all the accused ran away. The testimony of these three witnesses has remained completely unshaken in spite of lengthy cross-examination. Their statements fully establish that it was the appellant Prabhakar who assaulted the deceased Phool Chand with a knife. ( 7 ) THE post-mortem on the body of the deceased was conducted by P. W. 5 Dr. S. N. Das Gupta, Professor and Head of the Forensic Department of the Medical College of Banaras Hindu University. Their statements fully establish that it was the appellant Prabhakar who assaulted the deceased Phool Chand with a knife. ( 7 ) THE post-mortem on the body of the deceased was conducted by P. W. 5 Dr. S. N. Das Gupta, Professor and Head of the Forensic Department of the Medical College of Banaras Hindu University. He found the following ante-mortem injuries on the body of the deceased:1. Stab wound 3-1/2 cm. x 3/5 cm. x abdominal cavity, over front of abdomen in the left of midline 101 cm. above it heel. 36 cm. below mid-point of it, clavicle and 2 cm. to the left midline. The wound is wedge shaped with the narrower and directed upwards and to the left, Bone measuring 3/4 cm upper border 3-1/4 cm and lower border 3-1/4 cm moved with a downwards conformity. On dissection and training of the track it has passed through muscles of the abdominal wall peritoneum the large intestine in its transverse point close to it free border, through the mesentry at two places and finally terminated by interving the loop of Jejuna. The opening of Jejuna measure is 1-1/2 cm long and located close to mesentic border 100 cm. away from dudems jejunal wound. The wound are transverse colour is blace 50 cm away from illiocaecal In and measures 3-1/2 cm. length wise, the 1st wound over mesentery from the unerous, is 3-1/4 cm and the second 3 cm long respectively and are located close to the loops of intestines. Jejuna direction of the wound is from the left midline, backwards, downwards and to the right. The track is narrower as for going deeper. Abdominal cavity contain 2500 ml. clotted fluid blood dark and red in colour. 2. Defence cut wound 2-1/2 cm x 1/2 cm over inner half of right palm close to inner (ulnar) border. 3. Defence cut wound 1/4 cm x 1/4 cm x muscle over the palmar aspect of rt. index finger on the proximal inter phalangial crease. 4. Defence cut wound 1 cm x 1/4 cm x muscle over palmar aspect of It middle finger on the proximal inter phalangial crease. In the opinion of the doctor the death took place on account of shock and haemorrhage from. the abdominal stab injury and all the injuries could have been caused by a knife. 4. Defence cut wound 1 cm x 1/4 cm x muscle over palmar aspect of It middle finger on the proximal inter phalangial crease. In the opinion of the doctor the death took place on account of shock and haemorrhage from. the abdominal stab injury and all the injuries could have been caused by a knife. All the eye-witnesses have stated that a scuffle took place between the appellant and the deceased and latter tried to save himself in which he received injuries on his hands but the former gave a blow in his abdomen. The post-mortem report shows that the deceased sustained two cut wounds on his right palm and right index finger and another cut wound on the left middle finger on the proximal interphalangial crease besides the main stab wound on the abdomen. Therefore the eye-witnesses account is completely corroborated by the medical evidence on the record. ( 8 ) NOW we may consider the dying declaration made by Phool Chand deceased. P. W. 1 Sukhdeo has stated that after hearing the alarm he rushed to the spot and found his son lying in the field of Girdhari in an injured condition. Ram Adhy P. W. 2, Purshottam B. W. 3 and Sheonath P. W. 4 were already present when he reached and all of them had torches. After reaching the spot he inquired from his son as to who had assaulted him. Phool Chand then replied that appellant Prabhakar had assaulted him with a Karoli and Chandra Shekhar, Diwakar and Kashi Nath had helped him in surrounding and assaulting him. The three eye-witnesses, namely, Ram Adhar, Purshottam and Sheonath, have also stated that after arriving on the spot Sukhdeo inquired from his son as to who had assaulted him and then Phool Chand narrated about the incident. P. W. 13 Dr. R. N. Tripathi, M. O. II of PHC Suriawan, District Varanasi, has stated that on 3. 3. 1978 Dr. G. K. Singh was the In-charge of the Primary Health Centre while he was the second doctor posted there. Phool Chand was brought to the hospital at about 9. 30 PM and medical aid was provided to him which was recorded in the entry slip Ex. Ka. 17. Since the condition of the victim was serious and no magistrate was available nearby he thought it proper to record his dying declaration. Phool Chand was brought to the hospital at about 9. 30 PM and medical aid was provided to him which was recorded in the entry slip Ex. Ka. 17. Since the condition of the victim was serious and no magistrate was available nearby he thought it proper to record his dying declaration. Thereafter he recorded the statement of Phool Chand in question-answer form in the presence of the witnesses. After recording the statement he read over the same to the victim and obtained his thumb impression as he was not in a position to put his signature. He alio obtained the signature of one witness and thumb impressions of other two witnesses who were illiterate. He has proved the dying declaration which is Ex. Ka. 8 on the record. It a150 bears his signature and seal of his office. Thereafter he sent the main copy of the dying declaration by post to the District Magistrate, Varanasi. In the dying declaration the victim gave out his name, village, Police Station and the district correctly. Regarding the main incident he stated that Prabhakar Dube had assaulted him and his two, brothers Diwakar and Chandra Shekhar and a third persons, namely, Kashi Nath, were also present. He correctly gave the name of the father of the appellant, his village, police station and the district. When questioned as to what was the weapon and where he received the injuries he stated that he was assaulted by knife on hand and abdomen. The dying declaration. Ex. Ka. 8 bears the signature of Udai Raj and thumb impressions of Dharamraj and Ram Shiromani. Udai Raj has been examined as P. W. 10 and he has stated that the victim was taken to PHC Suriawan oil; a cot and after the doctor had examined him he recorded his statement in question answer form. He has further stated that the doctor put his signature on the statement of the victim and also obtained his signature and thumb impressions of other two witnesses. ( 9 ) THE evidence of dying declaration of the deceased has been seriously challenged on behalf of the appellant. Shri G. S. Chaturvedi has contended that the dying declaration Ex. Ka. 8 is a forged document and no such statement was recorded. . ( 9 ) THE evidence of dying declaration of the deceased has been seriously challenged on behalf of the appellant. Shri G. S. Chaturvedi has contended that the dying declaration Ex. Ka. 8 is a forged document and no such statement was recorded. . He has further contended that even if such a statement of deceased is in existence the same is wholly unreliable and should not be accepted. The first contention hardly merits any consideration. The dying declaration Ex. Ka. 8 has been recorded by a qualified doctor posted in a government hospital. It is preposterous to suggest that a responsible government servant would prepare a forged document in order to create evidence against the accused. We have no hesitation in holding that the dying declaration was recorded by the doctor. ( 10 ) IT was next contended that the victim was not in a fit condition to give a dying declaration and, therefore, the same should not be relied upon. In this connection it may be noticed that the doctor has made the following note in the dying declaration before questioning the victim: -. The patient is in semi-shocked condition but he is in full senses. In his statement Dr. Tripathi (P. W. 13) has stated that before recording the statement he had satisfied himself that the injured was in complete senses and he was in a position to give statement. When cross-examined he stated that while giving statement the injured sometimes became quiet but he never became unconscious. The victim was speaking in slow voice on account of shock. The witness further clarified that semi-shocked condition does not mean that the victim was unconscious. The statement of Dr. Tripathi, therefore, shows that Phool Chand was in a fit mental condition to give statement. There is no material on record to indicate that the mental condition of the deceased was impaired in any manner which may lead to the inference that the statement given by him was not his mental act or that the same should be held to be unreliable. In this connection it may also be noticed that the deceased had not sustained any injury either in his brain of in his heart region. No question was put to Dr. In this connection it may also be noticed that the deceased had not sustained any injury either in his brain of in his heart region. No question was put to Dr. S. N. Das Gupta P. W. 5, who conducted the post mortem examinational as to whether the victim could have given statement one and a half hours after having received the injuries. The evidence on record, therefore, leads to the inference that the deceased was in a fit mental condition to give statement and the dying declaration cannot be rejected on this ground. It was then contended that the dying declaration should not be accepted as in fact it is not the statement of the deceased but the same had been given at the instance of his family members and others who had accompanied him to the Suriawan Hospital. Reliance in support of this contention is placed upon the statement given by Dr. Tripathi in his cross-examination to the effect that the crowd was taking the name of the assailants. If the entire statement of Dr. Tripathi is carefully examined it will be revealed that about 20-25 persons had accompanied the victim. After the doctor came out of his residence he inquired as to who had assaulted. It was then that some persons in the crowd took the name of the assailants. Thereafter Dr. Tripathi said that he did not want to make inquiry from other persons but he would himself make the inquiry from the victim. He has further stated that he told the persons present there to keep quiet as he would solicit the answer only from the injured. This statement of the doctor shows that he was fully conscious of the fact that he had to record the statement of the victim as given by him in his own words and he had asked the persons accompanying to keep quiet and not to speak anything. Therefore, it cannot be said that the dying declaration is not the real statement of the victim nor can ii be rejected on the ground that it is a tutored statement of the deceased. ( 11 ) LEARNED counsel has also attacked the dying declaration on the ground that Dr. Tripathi was a young and inexperienced person. Therefore, it cannot be said that the dying declaration is not the real statement of the victim nor can ii be rejected on the ground that it is a tutored statement of the deceased. ( 11 ) LEARNED counsel has also attacked the dying declaration on the ground that Dr. Tripathi was a young and inexperienced person. It is true that he has admitted that it was his first occasion to record a dying decantation and that tilted time he had put in little over two years of service but this fact is no ground for rejecting the dying declaration. It is not in dispute that Dr. Tripathi is an educated and qualified doctor. The dying declaration is a small document written in Hindi. There is absolutely no reason why he would not have recorded the questions put to the victim and the answers given by him correctly. ( 12 ) REGARDING the oral dying declaration made by Phool Chand to his father Sukhdeo it may be mentioned that the said fact has not only been stated by Sukhdeo himself but also by the three eye-witnesses Ram Adhar, Purshottam and Sheonath. Sukhdeo reached the spot immediately after hearing the alarm. The three eye-witnesses have also deposed that the first person to arrive was Sukhdeo. It is most natural for a father to inquire from his injured son as to who had assaulted him. In fact not putting such a question would be a highly unnatural conduct. The house of Sukhdeo is very close to the place where Phool Chand had fallen after receiving injuries therefore Sukhdeos presence on the spot immediately after the incident appears to be natural and probable. The reply given by the victim that he had been assaulted by the appellant immediately after the occurrence is a reliable dying declaration. ( 13 ) LEARNED counsel for the appellant has contended that this fact has not been mentioned in the F. I. R. , nor in the statement of these witnesses as recorded under section 161, Cr. P. C. Regarding no mention of the statement made by the deceased, to his father in the statement of the witnesses under section 161, Cr. P. C. is concerned it is an omission and not a contradiction. In this view of the matter the statement of these witnesses cannot be discarded on this ground. P. C. Regarding no mention of the statement made by the deceased, to his father in the statement of the witnesses under section 161, Cr. P. C. is concerned it is an omission and not a contradiction. In this view of the matter the statement of these witnesses cannot be discarded on this ground. So far as the First Information Report is concerned it may be noticed that at the time when it was written it was not known that Phool Chand was dead. The F. I. R. was registered under section 307, I. P. C. and hot under section 302, I. P. C. Sukhdeo has merely narrated the manner in which the incident took place. After mentioning about the manner of assault and running away of the accused only one sentence has been written namely that Phool Chand has been taken to Yaranasi after initial medical aid at Suriawan. No other details are mentioned in the F. I. R. In these circumstances if the fact of giving of statement by Phool whoa to his father on the spot is not mentioned in the F. I. R. it cannot be held that such a statement was not given. On an overall consideration of the record we arc satisfied that the deceased Phool Chand had given a statement to his father Sukhdeo in the presence of other eye-witnesses to the effect that appellant Prabhakar had assaulted him with a knife. ( 14 ) LEARNED counsel for the appellant has contended that the witnesses were at great distance and they could not have reached the spot in time to see the actual assault upon the deceased. P. W. 4 Sheonath has stated that the place where he heard the alarm was at a distance of 50-60 paces from the spot. Its natural that after hearing the alarm the witnesses must have rushed with speed. The injuries on the hands (of the deceased show that he had tried to ward off the initial blows and this must have taken sometime. In cross-examination P. W. 4 has stated that when they were approaching the place of occurrence they saw the assault by knife from a distance of about 10 steps. We are, therefore, satisfied that the eyewitnesses had reached in time to see the assault upon the deceased. In cross-examination P. W. 4 has stated that when they were approaching the place of occurrence they saw the assault by knife from a distance of about 10 steps. We are, therefore, satisfied that the eyewitnesses had reached in time to see the assault upon the deceased. ( 15 ) APART from the testimony of the eyewitnesses and the dying declaration there is other corroborative evidence in record which shows that the prosecution case is true. All the three eye witnesses have stated that the appellant threw the Karoli and ran away. The said Karoli was picked up and taken to the police station by P. W. 1 Sukhdeo and was deposited there. P. W. 8 Ramnath has stated that he accompanied Sukhdeo to the police station where he had deposited the Karoli and a Fard Ex. Ka. 2 was prepared by the Head Constable at 6. 05 AM. The incident took place in a wheat field and at has come in the evidence that the crop of wheat was knee high. The recovery of the knife from the wheat field immediately shows that the eye-witnesses had reached the spot and had seen the actual throwing of the knife. The incident having taken place in night, the witnesses could not have possibly recovered the knife from the field, where wheat crop was standing, in case they had not actually seen the throwing thereof. This evidence lends corroboration to the testimony of the eye-witnesses. ( 16 ) THE Investigating Officer P. W. 14 Ambika Pande has stated that he reached the place of occurrence at 9. 15 AM on 4. 3. 1978 and inspected-the spot. He found the wheat crop in the field of Girdhari in a crumpled position. He further found brood on some plants and on the ground. He-also took in his possession plain and blood-stained earth. The prosecution has obtained the report of the Chemical Examiner regarding the blood which was found on the clothes of the deceased, Karoli and the blood stained earth which is Ex. Ka 27 on the record. The Chemical Examiner has opined that all these articles were stained with the human blood of 8 Group. This shows that the same Karoli which was taken by the informant to the police station was used for assaulting the deceased and the assault was made in the wheat field of Girdhari as stated by the witnesses. The Chemical Examiner has opined that all these articles were stained with the human blood of 8 Group. This shows that the same Karoli which was taken by the informant to the police station was used for assaulting the deceased and the assault was made in the wheat field of Girdhari as stated by the witnesses. Shri Chaturvedi vehemently contended that the incident took place at about 8 PM on 7th day of Krishna Paksha when there would be no moon light and, therefore, the real assailant could not have been identified by the witnesses. So far as the three eye-witnesses are concerned, namely, Ram Adhar, Purshottam and Sheo Nath, they have all stated that they came on the spot flashing their torches and as such there was sufficient light in which they could identify the appellant. The appellant is resident of the same village and was very well known to all the witnesses from before. So far as the deceased Phool Chand is concerned the postmortem report shows that he sustained three cut wounds on his palm and fingers which shows that there was scuffle between him and the assailant. The assailant must have naturally come quite close to him and some time would have elapsed before the appellant gave the fatal blow on his abdomen. Therefore, the deceased too would have got ample opportunity to see and identify the person who caused injuries to him. In this view of the matter the Contention raised by learned counsel for the appellant cannot be accepted and we are clearly of the opinion that there was sufficient light in which the witnesses and the deceased could have identified the real assailant. ( 17 ) HAVING carefully considered the entire evidence on record we are fully satisfied that the prosecution has succeeded in proving beyond any shadow of doubt that it was the appellant Prabhakar who had assaulted the deceased Phool Chand and that Phool Chand died on account of the injuries sustained by him. P. W. 5 Dr. S. N. Das Gupta has stated that the injuries sustained by the victim were sufficient in the ordinary course of nature to cause death. Therefore the offence committed by the appellant will be one under section 302, I. P. C. In the result the appeal fails and is hereby dismissed. The appellant, on bail. P. W. 5 Dr. S. N. Das Gupta has stated that the injuries sustained by the victim were sufficient in the ordinary course of nature to cause death. Therefore the offence committed by the appellant will be one under section 302, I. P. C. In the result the appeal fails and is hereby dismissed. The appellant, on bail. He must surrender to his bail-bonds forthwith to undergo the sentence imposed upon him. After the appellant has been taken into custody his bail bonds and surety bonds shall stand discharged. Appeal dismissed.