G. P. MATHUR, J. ( 1 ) THIS appeal has been filed against the judgment and order dated 7. 5. 1979 passed by the Turd Addi. Sessions Judge, Ballia, by which the appellants Nagar Singh and Rajdeo Singh were convicted under section 302, I. P. C. read with section 34 I. P. C. and were sentenced to imprisonment for life. Besides the two appellants, eight other accused were also tried in the same sessions trial but they were acquitted. ( 2 ) THE case of the prosecution is as under Complainant Murlidhar Yadav is resident of village Pakaria alias Nawapura. His cow had come in heat on 27. 3. 1975 and was taken by his brother and uncle to the eastern side of the village where other cattle of the village were grazing and a public bull of Sarai Bharati was also present, His brother and uncle wanted to bring the cow and the public bull to the village but accused Mangala Singh objected to it. This was resented by the a complainants brother and uncle on which exchange of words took place between them. Mangala Singh went towards his village after giving threats and the complainants brother and uncle brought the cow and the bull to their house Shortly thereafter, accused Nagar Singh and Rajdeo Singh, Mangala Singh, Ram Bachan, Brahma Deo Singh, Sheo Shanker Singh, Pakildeo Singh, Babu Lal Singh, Kuber Singh and Mahendra Singh, all residents of village Nawapura, came to the village of the complainant armed with lathis and spears. They wanted to take away the bull but it was strongly opposed. However the village people intervened in the matter and then they started returning to their own village. Complainants uncle Shri Kishan Ahir, who had taken the cattle for grazing was returning to his house at about 4 p. m. The aforesaid ten persons (accused) met him on the road near the crossing of the railway line and exchange of words and abuses took place between them. Thereafter all the accused chased him and surrounded him towards the west of the road going towards Sarai Bharati and, thereafter, started assaulting him. Accused Nagar Singh and Sheo Shanker Singh assaulted him with spears and accused Rajdeo Singh assaulted him with lathi. Thereafter all the accused chased him and surrounded him towards the west of the road going towards Sarai Bharati and, thereafter, started assaulting him. Accused Nagar Singh and Sheo Shanker Singh assaulted him with spears and accused Rajdeo Singh assaulted him with lathi. On the alarm raised by Shri Kishan the complainant Muralidhar, his brother Jai Mangal and uncle Radha rushed to save him but the accused surrounded them and assaulted them with lathis. Shri Kishan received spear injury in his abdomen and fell down. Thereafter the accused ran away. Murlidharyadav lodged a written First Information Report of the incident at 5. 30 P. M. on 27. 3. 1975 at P. S. Rasra which is four miles from village Nawapura. On the basis of the F. I. R. lodged by Murlidhar a case was registered as Crime No. 84 under sections 147, 148, 149,307, 324, and 323 I. P. C. against the ten accused named in the F. I. R. ( 3 ) IN the incident four persons, namely, Shri Kishan, Murlidhar, Radha and Jai Mangal received injuries. They were medically examined between 6 and 6. 10 P. M. on 27. 3. 1975 in the government hospital, Rasra, Shri Kishan Ahir succumbed to his injuries at 1. 30 P. M. on 29. 3. 1975 in the district Hospital, Ballia. Thereafter the case was converted into one under section 302, I. P. C. ( 4 ) AFTER the usual investigation charge-sheet was submitted against the ten accused. The learned magistrate committed the case to the court of sessions. The learned 3rd Addi. Sessions Judge, Ballia, who tried the case, framed charges under sections 147 and 302/149, I. P. C. against all the ten accused. Nagar Singh and Sheo Shanker Singh accused were further charged under section 148, I. P. C. ( 5 ) THE accused denied the prosecution case. Appellant Nagar Singh further stated that some dispute had arisen regarding the Managing Committee of Pakwa mar High School in which Sarju Gin and Keshav Singh were against him and they had got the accused implicated in a false case. Appellant Rajdeo Singh stated that Murlidhar and Jai Mangal had assaulted the grand-father of Kapildeo in the year 1970 in which he was a prosecution witness and, therefore, he had been implicated in the present case. ( 6 ) THE prosecution in support of its case examined nine witnesses including four eye-witnesses. Appellant Rajdeo Singh stated that Murlidhar and Jai Mangal had assaulted the grand-father of Kapildeo in the year 1970 in which he was a prosecution witness and, therefore, he had been implicated in the present case. ( 6 ) THE prosecution in support of its case examined nine witnesses including four eye-witnesses. The accused examined two witnesses and two others were examined as court witnesses. The learned Sessions Judge, after examining the evidence on record, held that the prosecution case was established against the appellants Nagar Singh and Rajdeo Singh and convicted and sentenced them as stated earlier. The remaining eight accused were given benefit of doubt and were acquitted. It may be stated here that the state has not challenged the acquittal of Mangal Singh, Ram Bachan, Brahmadeo Singh, Sheo Shanker Singh, Kapildeo Singh, Kumber Singh, Babu Lal and Mahendra Singh and as such the same has become final. ( 7 ) THE prosecution in support of its case examined four eye-witnesses, namely, P. W. 1 Murlidhar Yadav, P. W. 4 Sheo Poojan, P. W. 6 Radha and P. W. 7 Raja. Murlidhar Yadav has given the details of the prosecution case in his examination-in-chief. He has stated that his cow, which was in heat, was taken to the outskirts of village Nawapura by Jai Mangal and Radha where public-bull of Sarai Bharati was present. They brought the bull towards east of the abadi which was objected to by Mangala Singh accused and he had given threats. Radha and Jai Mangal told about the threats given by Mangala Singh accused to this witness. After the bull was brought near the house of the complainant the ten accused came there and said that they would take away the bull. The village people intervened and the accused started returning. On the way they met Shri Kishan with whom they talked about the bull and subsequently exchange of abuses took place. Shri Kishan ran towards the village but the accused chased him and assaulted him towards west of Sarai Bharati road in the field adjoining to the filed of Jagdish Gosain. Nagar Singh and Shanker assaulted him with spear while Rajdeo assaulted him with lathi. On the alarm raised by Shri Kishan he along with Radha and Jai Mangal rushed there to save him when the remaining seven accused surroundect and assaulted them with lathis. Nagar Singh and Shanker assaulted him with spear while Rajdeo assaulted him with lathi. On the alarm raised by Shri Kishan he along with Radha and Jai Mangal rushed there to save him when the remaining seven accused surroundect and assaulted them with lathis. Shri Kishan fell down and then the accused ran away. The spot where the incident took place is at a distance of 1-1/2 furlongs from his village and the village of the accused is at a distance of 5-6 furlongs from that place. In his cross-examination he admitted that the accused belonged to six families. He also admitted that his house was at a distance of one furlong from the house of Shri Kishan. His cow and the bull were at a distance of about 30-40 paces from the house of Shri Kishan and Jai Mangal and Radha were near the cow. He further admitted that the assault was made at a distance of little less than one furlong from his house and no-one was assaulted at the house of Shri Kishan. He also stated that he did not see any accused getting injured in the incident. He denied the defence suggestion that his family members had gone to the west of village Nawapura at about 9. 10 A. M. for bringing the bull which was objected to by others who had taken their cattle for grazing. He further denied the defence suggestion that he along with Radha, Shri Kishan, Jai Mangal and others, armed with lathi, spear and gandasa, forcibly brought the bull and in this incident marpit took place in which they also received injuries. Regarding the events subsequent to the assault he stated that after about 10 or 15 minutes he along with other injured proceeded to Rasra on a rickshaw. He further stated that he was not accompanying Shri Kishan on the rickshaw and that he had no talks with him. Shri Kishan remained in the Rasra Hospital for some time and, thereafter, he was brought to Ballia Hospital. We have carefully examined the statement of this witness. He was medically examined at 6. 50 P. M. on 27. 3. 1975 in Rasra Hospital and the doctor had found five injuries on his body which were fresh in duration. The testimony of this witness has not been shaken in any manner in his cross- examination. We have carefully examined the statement of this witness. He was medically examined at 6. 50 P. M. on 27. 3. 1975 in Rasra Hospital and the doctor had found five injuries on his body which were fresh in duration. The testimony of this witness has not been shaken in any manner in his cross- examination. From his testimony it is fully established that the ten accused had come for taking away the bull and while they were returning after the village people had intervened they met Shri Kishan near the railway crossing with whom exchange of abuses took place. Thereafter Nagar Singh and Sheo Shanker armed with spears and Rajdeo Singh armed with lathi assaulted Shri Kishan whereas remaining seven accused assaulted him, Radha and Jai Mangal. ( 8 ) P. W. 4 Sheo Poojan stated that at about 3. 45. P. M. on the date of incident he was present in the grove of Sheo Prasad along with Raja and Bishwanath when he heard the alarm of Shri Kishan. He rushed towards the south-west of the railway crossing where altercation was going on and Nagar Singh and Sheo Shankar, armed with spears, and Rajdeo armed with lathi, were assaulting Shri Kishan. The remaining accused had surrounded Murlidhar, Radha and Jai Mangal and were assaulting them. The assault took place in the Khanti (field from where earth is taken out) towards south-west of Sarai Bharati road where Shri Kishan fell down and the accused ran away. The injured were taken on the rickshaw. Shri Kishan was putting on only a Dhoti at the time of the incident and his wound was tied with a Kurta. In his cross-examination he has admitted that he was the first-cousin of Murlidhar P. W. 1 but on account of some dispute over land his relations with Shri Kishan and Murlidhar were strained. He also stated that he did not know as to who had brought the buif from Nawapura as at that time as he was harvesting the crop towards west of the village and had arrived in the grove about half an hour before the incident. The assault had taken place after he had reached there. He also admitted that altercation had taken place near the railway crossing but the actual assault took place when he reached there. He had seen the altercation while he was in the grove. The assault had taken place after he had reached there. He also admitted that altercation had taken place near the railway crossing but the actual assault took place when he reached there. He had seen the altercation while he was in the grove. He further admitted that the sub Inspector of Police recorded his statement on the same day and he had also accompanied him to the spot. He denied the defence suggestion that he was giving wrong statement as he belonged to the family of Gulzar and he was not present on the spot. We have examined the statement of this witness carefully and nothing has come out in his cross examination which may throw any doubt regarding his presence on the spot or show that he had not seen the occurrence. It is true that he is the first-cousin of P. W. 1 Murlidhar but that fact alone is not sufficient to discard his statement. There is other evidence on record which corroborated his testimony. P. W. 6 Radha has stated that the cow of his nephew Murlicthar was in heat. He along with Jai Mangal went to the outskirts of village Nawapura where public-bull of Sarai Bharati was present. He brought the bull to his village in the afternoon in spite of the objections raised by Mangala Singh accused. After about 1-1/2 hours the ten accused came and started taking away the bull which was resented by him. The accused lost temper but on the intervention of some people of the village they started returning. The accused met his brother Shri Kishan near the railway crossing at about 4 P. M. where exchange of abuses took place between them. Shri Kishan ran towards south but all the ten accused surrounded him in the Khanti where Nagar Singh and Sheo Shanker assaulted him with spear and Rajdeo assaulted him with lathi. He along with Jai Mangal and Murlidhar rushed to save him but they were also assaulted by the remaining seven accused with lathis. Shri Kishan received spear injury and fell down on the spot and, thereafter, the accused ran away. After the assault they went to the police station and then to hospital where they were medically examined. This witness was medically examined at 6. 30 P. M. on 27. 3. 1975 and the doctor found nine injuries on his body. Shri Kishan received spear injury and fell down on the spot and, thereafter, the accused ran away. After the assault they went to the police station and then to hospital where they were medically examined. This witness was medically examined at 6. 30 P. M. on 27. 3. 1975 and the doctor found nine injuries on his body. In his cross-examination he has stated that they had not forcibly brought the bull to their village but the bull had come of its own following the cow, when the accused came some exchange of hot words took place but no one was assaulted there. He further stated in his cross- examination that on hearing alarm of Shri Kishan he rushed to the spot without carrying any weapon. When he reached the spot he saw Nagar Singh, Sheo Shanker and Rajdeo accused assaulting Shri Kishan. After he reached the spot he, Murlidhar and Jai Mangal were assaulted by the remaining seven accused. He went to Rasra along with Murlidhar and others. He was questioned by the station officer at about 7 P. M. in Rasra Hospital. He denied the defence suggestion that the incident did not take place in the manner stated by him. He further denied the defence suggestion that he was assaulted by some unknown persons when he along with Murlidhar and Jai Mangal and Shri Kishan were forcibly trying to snatch the bull. This witness has received injuries in the incident and, therefore, his presence on the spot cannot be doubted in any manner. His testimony has remained completely unshaken in cross-examination. P. W. 7 Raja, a resident of village Pakaria, has stated that he was present in the grove along with P. W. 4 Sheo Poojan and Bishwanath at about 4 P. M. He heard the alarm of Shri Kishan from near the railway crossing and rushed to that place where he saw nine accused out of whom Nagar Singh and Sheo Shanker armed with spears and Rajdeo Singh armed with lathi were assaulting Shri Kishan. Remaining accused were assailing Radha, Jai Mangal and Murlidhar. Shri Kishan fell down after receiving injuries and, thereafter, all the accused ran away. In cross-examination he frankly admitted that he had fought a case regarding Banjar land against Babu Lal accused about 3-4 years back. Remaining accused were assailing Radha, Jai Mangal and Murlidhar. Shri Kishan fell down after receiving injuries and, thereafter, all the accused ran away. In cross-examination he frankly admitted that he had fought a case regarding Banjar land against Babu Lal accused about 3-4 years back. He further stated that his house is at a distance of 10 steps from the grove and he had reached the aforesaid grove about 10 minutes before he heard the alarm of Shri Kishan. In para 5 he reiterated that he had seen only nine accused out of whom three were assauiling Shri Kishan. Shri Kishan was armed with lathi with which he was trying to save himself but-he did not see any injury on anyone of the accused. He denied that he belonged to tie family of P. W. 1 Murlidhar and stated that they did not dine at each others place. In -his examination in chief this witness has not named Babu Lal as one of the accused but has named only nine persons. In his cross-examination also be emphatically slated that he had seen only nine accused and not ten. Though the other three eye-witness have slated that Babu Lal was also present and was assaulting with lathi but this witness has omitted his name. In his cross-examination he has admitted that he had fought a litigation with Babu Lal. The fact that though he was inimical to Babu Lal and yet he did not nominate him as one of the accused shows that he a truthful witness and did not want to implicate anyone falsely or give a false version. In case he had not seen the incident or wanted to implicate anyone falsely he would not have omitted the name of Babu Lal. On the contrary he would have assigned a specific role to Babu Lal accused in order to fasten liability upon him. He is a resident of the same village Pakaria where the incident took place. Nothing has come out in his cross- examination which may cast doubt upon his testimony. His statement is quite reliable and proves the participation of the accused in the incident in which assault was made by them upon Shri Kishan and others. ( 9 ) P. W. 5 Dr. Fateh Bahadur Singh was the Medical Officer-In-charge of the Government Hospital at Rasra on 27. 3. 1975. His statement is quite reliable and proves the participation of the accused in the incident in which assault was made by them upon Shri Kishan and others. ( 9 ) P. W. 5 Dr. Fateh Bahadur Singh was the Medical Officer-In-charge of the Government Hospital at Rasra on 27. 3. 1975. He has stated that he examined Shri Kishan (deceased), P. W. 1 Murlidhar, P. W. 6 Radha and Jai Mangal between 6 P. M. and 7. 10 P. M. He has proved the injury reports of the aforesaid persons which are Exs. Ka 8 to Ka 11 on the record. In his opinion the injuries received by all the four injured were fresh in duration. The three injured other than Shri Kishan had received injuries by blunt weapon while injury Nos. 3 and 4 of Shri Kishan were by sharp pointed weapon like spear. Shri Kishan had sustained six injuries out of which three were punctured wounds, two contusions and one lacerated wound. Radha had received nine injuries out of which three were lacerated wounds and three contusions. Murlidhar had received five injuries including four contusions and one lacerated wound. Jai Mangal had received four injuries including one lacerated wound and three contusions. ( 10 ) P. W. 2 Dr. Diwakar Misra, Surgeon in the District Hospital, Ballia, has slated that he performed post mortem examination on the body of Shri Kishan at 11. 45 A. M. on 30. 3. 1975 Shri Kishan had died in the District Hospital at 1. 30 P. M. on 29. 3. 1975. He found three punctured wounds, two bruises and one lacerated wound on the body of the deceased. He has stated that the punctured wounds could have been caused by a spear. The death of Shri Kishan took place on account of anti-mortem injuries received by him specially injury No. 3 which was sufficient in the ordinary course of nature to cause death. ( 11 ) THE testimony of the eye-witnesses finds complete corroboration from the medical evidence on record. The four eye-witnesses have slated that Nagar Singh and Sheo Shankar armed with spears and Rajdeo Singh armed with lathi had assaulted Shri Kishan. The testimony of both the doctors namely P. W. 2 and P. W. 5, shows that there were three punctured, wounds, one lacerated wound and two contusions (bruises) on the body of Shri Kishan. The four eye-witnesses have slated that Nagar Singh and Sheo Shankar armed with spears and Rajdeo Singh armed with lathi had assaulted Shri Kishan. The testimony of both the doctors namely P. W. 2 and P. W. 5, shows that there were three punctured, wounds, one lacerated wound and two contusions (bruises) on the body of Shri Kishan. The eye witnesses have further stated that the remaining accused assaulted Murlidhar, Radha and Jai Mangal with lathis. These three injured have received in all 18 injuries which in the opinion of the doctor were all caused by blunt weapon. Thus the eye-witness account of the incident finds complete corroboration from the medical evidence on record. ( 12 ) P. W. 8 Rekha Ram, Head Constable, has proved the handwriting of Gauri Shankar Tewari who was posted as Head Constable at P. S. Rasra on 27. 3. 1975 and who had prepared the chik First Information Report and had made necessary entries in the general diary. P. W. 3 Abdul Ahad has stated that he was posted as S. L at P. S. Kotwali, Ballia, and he had prepared the inquest on the dead body of Shri Kishan in the District Hospital, Ballia. ( 13 ) P. W. 9 Awadh Raj Singh is the Investigating Officer of the case. He has stated that he was present at P. S. Rasra at 5. 50 P. M. on 27. 3. 1975 when the case was registered. He sent the four injured for treatment to the Rasra Hospital. He also reached the hospital at 6. 15 p. m. and recorded the statement of Murlidhar, Radha and Jai Mangal and also of Dr. F. B. Singh, M. O. In charge. He reached the spot in village Pakaria at 8. 40 P. M. and recorded the statement of P. W. 4 Sheo Poojan and P. W. 7 Raja the same night. He has further stated that next day in the morning he inspected the spot and took in his possession plain and blood-stained earth from the Khanti which was situate at a distance of 52 pace south-west of railway crossing. He has further stated that at 3. 15 p. m. on 1. 4. He has further stated that next day in the morning he inspected the spot and took in his possession plain and blood-stained earth from the Khanti which was situate at a distance of 52 pace south-west of railway crossing. He has further stated that at 3. 15 p. m. on 1. 4. 1975 he had received a cross F. I. R. on the basis of which crime No. 84a had been registered under sections 147, 148,323 and 324, I. P. C. ( 14 ) APART from the testimony of the eyewitnesses and the medical evidence the prosecution has also brought on record the dying declaration of the deceased Shri Kishan. P. W. 5 Dr. Fateh Bahadur Singh has stated. that the condition of Shri Kishan was bad and he could have died any moment. It was doubtful whether any magistrate could be summoned within time. Accordingly before examining him medically he thought it proper to record his dying declaration. As such he recorded the statement of Shri Kishan at 5. 45 P. M. on 27. 3. 1975. He has stated that he recorded the statement of Shri Kishan in his own words and at that time he was in complete sences. He was in a position to understand the things and give reply. He has further stated that after recording the statement the same was read over to Shri Kishan and then his thumb-impression was obtained. At the time of recording his statement neither any police personnel nor any other person was present there. At that time apart from him only the compounder was present. The statement of Sri Kishan is Ex. Ka. 12 on the record. In his statement Shri Kishan has stated that some persons had come to take away the public bull from his door. He told them that after the cow was crossed he would return the bull. Thereafter Nagar Singh, Mangala Singh, Ram Eachan, Rajdeo, Dharamdeo and Brahma Deo and several others started abusing and chased to assault him. Nagar Singh assaulted him with a spear. Meanwhile his family members arrived there and they were also assaulted. At that time Nagar Singh was armed with spear, Mangal Singh with Gandasa and the remaining persons were armed with lathis. ( 15 ) IT appears that another dying declaration of Shri Kishan deceased was recorded at 11. 45 A. M. on 29. 3. Meanwhile his family members arrived there and they were also assaulted. At that time Nagar Singh was armed with spear, Mangal Singh with Gandasa and the remaining persons were armed with lathis. ( 15 ) IT appears that another dying declaration of Shri Kishan deceased was recorded at 11. 45 A. M. on 29. 3. 1975 by Indradeo Singh, Naib Tahsildar. The prosecution did not examine him as a witness to prove the aforesaid dying declaration. The accused have, however, examined Indnideo Singh, Naib Tehsildar, as a defence witness. He has stated that he recorded the statement of Shri Kishan in the District Hospital and at that time he was in a fit mental condition. He has also proved the certificate of Dr. G. S. Chaturvedi on the dying declaration to the effect that Shri Kishan was in a condition to give statement. He has further stated that after the statement was recorded the same was read over to Shri Kishan and, thereafter, his thumb-impression was obtained. The statement is Ex. Kha I on the record. In this statement Shri Kishan has stated that on Thursday, 27. 3. 1975, he had brought a bull for getting his cow crossed. Nagar Singh, Rajdeo Singh, Kuber Singh and Ram Bachan (accused) came to his house and demanded the bull. They were asked to take the bull after the cow had been crossed. Thereafter Nagar Singh assaulted on his intestines by a spear and Rajdeo Singh assaulted with a lathi. Dharamadeo and Bhramadeo also assaulted with lathi. ( 16 ) SO far as the first dying declaration recorded by P. W. 5 Fateh Bahadur Singh is concerned it may be noticed that the same was recorded within two hours of the incident. P. W. 5 has stated that at that time neither any police personnel nor any other person was present there. Shri Kishan had no talks with the Investigating officer or any other police personnel by that time. The time and the manner in which the statement was recorded shows that there had been no tutoring and it was own statement of the deceased. In this statement the deceased has clearly stated that he had been assaulted by Nagar Singh with spear. Therefore from this dying declaration it is fully established that Nagar Singh assaulted the deceased with spear. In this statement the deceased has clearly stated that he had been assaulted by Nagar Singh with spear. Therefore from this dying declaration it is fully established that Nagar Singh assaulted the deceased with spear. The second dying declaration has been brought on record by the accused themselves by examining a defence witness. Even in his dying declaration Shri Kishan has clearly assigned the role of causing spear injury to his intestines to Nagar Singh accused and has further stated that Rajdeo accused assaulted him with lathi. This dying declaration also establishes that Nagar Singh had assaulted the deceased with spear. In our opinion the dying declarations are the Own statements of the deceased Shri Kishan and they can be safely relied upon as against the appellant Nagar Singh. ( 17 ) THE accused also examined two witnesses in defence. D. W. 1 Basdeo Sharma, Record Keeper in the S. P. Office, Ballia, has stated that the diary maintained at the police station for recording non-cognizable offences is sent to S. P. Office after three years and it is not further retained there but is weeded out. He has further stated that the register of non-cognizable offences of 12. 7. 1975 must have been weeded out and will not be available. D. W. 2 Indradeo Singh, Naib Tahsildar, has been examined by the accused to prove the second dying declaration recorded by him and his testimony has already been referred to earlier. ( 18 ) THE Court also examined two witnesses, namely, Sukhdeo Chaube C. W. 1 and Surendra Nath Rai C. W. 2 C. W. 1 Sukhdeo Chaube has stated that he was the Sessions Clerk in the court of the District Judge, Ballia, in 1975. He has tried to prove the carbon copy of the order passed by the learned sessions Judge on the bail application of Nagar Singh accused and the copy of the said order has been brought on record as Ext. C 1. C. W. 2 Surendra Nath Rai has proved the handwriting of Gauri Shanker Tiwari, Head Constable of P. S. Rastra at the relevant time. He has stated that in the general diary of the police station it is mentioned that a written F. I. R. of Mangala Singh was received at 12. 45 hrs on 1. 4. 1975. C 1. C. W. 2 Surendra Nath Rai has proved the handwriting of Gauri Shanker Tiwari, Head Constable of P. S. Rastra at the relevant time. He has stated that in the general diary of the police station it is mentioned that a written F. I. R. of Mangala Singh was received at 12. 45 hrs on 1. 4. 1975. He has also proved the chik F. I. R. prepared by Gauri Shanker Tewari Head Constable on its basis and the same is Ex. C4 On the record. ( 19 ) BY the testimony of the aforesaid two court witnesses it is sought to be established that Mangala Singh accused also lodged a F. I. R. giving cross version of the incident and such a cross version was also set-up in the bail application moved by Nagar Singh accused. What is attempted to be brought on record is that at that stage the accused did not deny the incident but set-up some sort of a counter version admitting their presence on the spot. In our opinion the evidence of both the court witnesses as well as the documents filed by them are wholly irrelevant and we are placing no reliance upon the same for the decision of the present case. The plea taken by one of the accused in the bail application moved at the initial stage is not admissible in evidence. Similarly in the absence of the original F. I. R. of Mangala Singh, which has not been brought on record, it is not legally permissible to prove the same by proving the copy of the chik F. I. R. alleged to have been prepared on its basis by the Head constable of the police station. ( 20 ) LEARNED counsel for the appellant has contended that there is conflict between the testimony of the witnesses and the dying declaration in so far as the place of occurrence is concerned and, therefore, the prosecution case has not been proved beyond reasonable doubt and the accused are entitled to be acquitted. Learned counsel drew the attention of the court towards the last sentence of the first dying declaration where the deceased stated that the incident took place at his door and also to the fact that in the second dying declaration the deceased stated that the accused came to his house demanding the bull. Learned counsel drew the attention of the court towards the last sentence of the first dying declaration where the deceased stated that the incident took place at his door and also to the fact that in the second dying declaration the deceased stated that the accused came to his house demanding the bull. According to the learned counsel the dying declarations show the place of the incident as the door of the deceased whereas the eye-witnesses have stated that the deceased was assaulted in the Khanli near the railway crossing and thus there was serious conflict regarding the place of occurrence. If we examine the testimony of the eye-witnesses and the dying declarations carefully it will be revealed that there is no real conflict between the two versions. According to the eye-witnesses the accused came to the house of the victim for taking back the bull which was objected to by the complainant and others. When the village people intervened the accused returned and while going back they met Shri Kishan near the railway crossing. There exchange of abuses took place and the accused chased Shri Kishan and assaulted him in the Khanti. Therefore, the whole incident took place in two parts. The first one was when the accused came to the house of the victim demanding the bull-and the second one was the actual assault upon the deceased and the members of the complainant party. In the second dying declaration Shri Kishan has stated that the accused had come to his house for taking away the bull. He has not stated that assault was made upon him at his house. Therefore, so far as the second dying declaration is concerned there is no conflict at all with the testimony of the eye-witnesses. In the first dying declaration Shri Kishan has stated that the incident (GHAT ANA) took place at his door. He has not stated that he was assaulted at his door. The first part of the incident, namely, demand of bull, had certainly taken place at the door of the victim. Thus it is apparent that there is no conflict regarding place of incident between the eyewitnesses account and the dying declaration. ( 21 ) LEARNED counsel has further submitted that the F. I. R. of the incident was lodged at 5. Thus it is apparent that there is no conflict regarding place of incident between the eyewitnesses account and the dying declaration. ( 21 ) LEARNED counsel has further submitted that the F. I. R. of the incident was lodged at 5. 50 P. M. as stated by P. W. 5 Avadh Raj Singh, S. O. of P. S. Rasra, but the dying declaration shows that the same was recorded at 5. 45 P. M. According to the learned counsel the dying declaration could not have been recorded prior to the lodging of the F. I. R. and, therefore, it was not a reliable document and was liable to be rejected. It appears that P. W. 9 has wrongly stated that the F. I. R. was lodged at 5. 50 P. M. the documents on record namely the original copy of F. I. R. and the statement of P. W. 8 Rekha Ram Head Constable shows that the F. I. R. was actually lodged at 5. 30 P. M. The evidence on record further shows that the deceased Shri Kishan was immediately sent to Rasra hospital. P. W. 5 Dc. F. B. Singh has stated that as the condition of Shri Kishan was serious he recorded his statement first before examining his injuries. Thus the genuineness of the dying declaration cannot be doubted only on the ground that the same was recorded within 20 minutes of the lodging of the F. I. R. ( 22 ) WE have already held above that the eyewitnesses have given truthful version of the incident. Out of four, two eye-witnesses have received injuries in the incident and their presence cannot at all be doubted. Their testimony finds corroboration from the medical evidence on record and also from recovery of blood from the place of occurrence. That apart there is evidence of dying declaration as well, in/which the deceased has stated that Nagar Singh assaulted him with spear. In the second dying declaration recorded by the Naib Tahsildar which was brought on record by the accused themselves, deceased has said that Nagar Singh assaulted him with spear in his intestines. Thus it is fully established that it was Nagar Singh who gave the spear blow to the deceased in the region of intestines. In the second dying declaration recorded by the Naib Tahsildar which was brought on record by the accused themselves, deceased has said that Nagar Singh assaulted him with spear in his intestines. Thus it is fully established that it was Nagar Singh who gave the spear blow to the deceased in the region of intestines. The fact that the deceased received spear injury in his abdomen by which injuries were caused to the intestines is fully established by the statements of the two doctors P. Ws. 2 and 5. P. W. 2 Dr. Diwakar Misra has stated that death took place on account of injury No. 3 which is a punctured wound 5 cm x 2-1/2 cm x abdominal cavity deep over the left side chest from which momentum was coming opt. He has further stated that this injury was sufficient in the ordinary course of nature to cause death. Therefore, Nagar Singh has committed the offence under section 302, I. P. C. It may be mentioned here that remaining eight accused of the case have been acquitted by the learned Sessions Judge and the State has not challenged their acquittal by filing appeal and the same has be come final. ( 23 ) SO far as Rajdeo Singh accused is concerned he is not alleged to have caused any injury to the deceased in the first dying declaration. In the second dying declaration Shri Kishan said that Rajdeo assaulted him with lathi on his abdomen. Learned counsel submitted that if the document is read correctly it will show that Rajdeo is alleged to have assaulted on the leg of the deceased. The post mortem report shows that the deceased did not sustain any injury by blunt weapon either in his legs or in the abdomen. Thus the medical evidence does not corroborate the role attributed to Rajdeo Singh in the second dying declaration. In this view of the matter we do not consider it safe to uphold the conviction of Rajdeo Singh and accordingly give him benefit of doubt. ( 24 ) THE learned Sessions Judge has convicted Nagar Singh under section 302, I. P. C. read with section 34, I. P. C. and has sentenced him to imprisonment for life. We alter the conviction of Nagar Singh to one under section 302, I. P. C. and affirm the sentence of life imprisonment awarded to him. ( 24 ) THE learned Sessions Judge has convicted Nagar Singh under section 302, I. P. C. read with section 34, I. P. C. and has sentenced him to imprisonment for life. We alter the conviction of Nagar Singh to one under section 302, I. P. C. and affirm the sentence of life imprisonment awarded to him. ( 25 ) THE appeal of Rajdeo Singh is accordingly allowed. His conviction under section 302/ 34, I. P. C. and the sentence imposed upon him by the learned Sessions Judge is set aside. He is on bail. He need not surrender. The appeal of Nagar Singh is dismissed with the modification that his conviction is altered to one under section 302, I. P. C. for which he is sentenced to imprisonment for life. He is on bail. He shall surrender forthwith to undergo the sentence imposed on him. Appeal partly allowed. .