JUDGMENT 1. - Appellant Birbal faced trial before the Additional Sessions Judge, Neem Ka Thana, who by his judgment dated 12.95 has convicted him for the offence under Section 302 Indian Penal Code. and sentenced him to life imprisonment with a fine of Rs. 10.000/- and in default of payment of fine, to further undergo RI for six months. 2. The criminal justice machinery was set into motion on the basis of a written report Ex. P7 submitted by PW 5 Chhotu Ram, Head Master Government Secondary School, Guhala before PW 30 Ahmad Khan, HC I/C Police Out-post Guhala on 1.7.92 at 11.30 a.m. It was alleged in report Ex. P7 that on that day at about 9.30 a.m., he alongwith Om Prakash, Senior Teacher, Narend ra Sharma, Teacher, PW 10 jagdish Prasad Senior Teacher,PW 13Ghasi Ram Senior Teacher, Gajanand Teacher (deceased), appellant Birbal, Ex-Teacher and latter's cousin Amichand co-accused were having conversation in the record room attached to the examination hall. Appellant Birbal was repeatedly insisting that he should be taken on duty in the School, to which he (PW 5 Chhotu Ram) declined. It was further alleged that thereafter Chhotu Ram alongwith Om Prakash came outside leaving others in the said room and that when he was stepping down from the Verandah of the School he heard hue and cry, whereupon he rushed towards the said mom. At that moment of time, he saw Gajanand (deceased) coming out of the record room. PW 10 Jagdish Prasad and PW 13 Ghasiram, etc. were in the examination hall situated just outside the record room. Gajanand was soaked with blood and had sustained injuries on both sides of his abdomen and hands by some sharp edged weapon. It was further mentioned in report Ex. P7 that Gajanand asked them to take him immediately to the hospital. He also stated that Birbal and Ami Chand had inflicted knife blows to him. Gajanand was rushed to Guhala Hospital, where the doctor after giving him first aid had referred him to Sikar Hospital. Chhoturam also mentioned in report Ex. P7 that he had also informed about the said incident to the Police Station Neen Ka Thana, on phone,and that appellant Birbal and Gajanand had developed animosity in respect of their transfer, which was the motive for the incident. 3. Chhoturam also mentioned in report Ex. P7 that he had also informed about the said incident to the Police Station Neen Ka Thana, on phone,and that appellant Birbal and Gajanand had developed animosity in respect of their transfer, which was the motive for the incident. 3. PW 30 Ahmad Khan HC, after jotting down the Police proceedings (Karyavahi Police) on report Ex. P7 handed over the same to PW 21 Rekha Ram LC, who in turn, submitted the same before PW 32 Shishupal Singh ASI, who was the then I/C P.S. Neem Ka Thana, whereupon formal FIR Ex. P19 was drawn and a case under Sections 307, 324, Indian Penal Code was registered. 4. PW 30 Ahmad Khan, In-Charge Police Out Post, Guhala conducted the initial investigation in this case. On 1.7.92 he inspected the site, prepared site plan Ex. P8 and inspection note Ex. P13, lifted the blood lying on the Verandah of the School and seized and sealed the same vide seizure memo Ex. P9 and recorded statements of most of the witnesses under Section Criminal Procedure Code. 5. On the same day i.e. 1.7.92 at 12.15 p.m. Gajanand was admitted in S.K. Hospital, Sikar, PW 1 Dr. G.R. Tanwar, Medical Jurist examined him and as per medico legal injury report Ex. P1, found the following injuries on his person 1. Bleeding incised penetrating wound transverse 3 cm. x 1/2cm. x deep in thorasic cavity on the right side of chest lower part laterally. 2. Incised penetrating wound obliquely 3 cm. x 1/2cm. x deep intra peritonial region at epigastrium. 3. Incised penetrating wound oblique 2 cm. x 1/2cm. x deep intra peritonial on the left side abdomen near umbilicus. 4. Incised penetrating wound 2 cm. x 1 cm. x 21/2cm. on middle of left thigh laterally. 5. Incised penetrating wound 2 cm. x 1/2cm. x 11/2cm. at middle of left fire- arm posteriorly. All those injuries were caused by sharp edged weapon. Injury No. 4 was simple in nature. For rest of the injuries, Dr. Tanwar reserved his opinion and advised for X-ray examination of chest, abdomen and left forearm. Duration of those injuries was within 4 to 12 hours. 6. Dr. Tanwar by his letter dated 1.7.92 Ex. All those injuries were caused by sharp edged weapon. Injury No. 4 was simple in nature. For rest of the injuries, Dr. Tanwar reserved his opinion and advised for X-ray examination of chest, abdomen and left forearm. Duration of those injuries was within 4 to 12 hours. 6. Dr. Tanwar by his letter dated 1.7.92 Ex. P34 also intimated the I/C Police Out-post, Kalyan Circle, Sikar that Gajanand, having sustained multiple injuries, had been admitted in Male Surgical Ward of S.K. Hospital, Sikar, whereupon PW 31 Chatar Singh ASI recorded Gajanand's 'Parcha Bayan' Ex. P31 after the doctor had testified that the latter was fit for giving his statement vide Tehrir Ex. P32. 7. On 1.7.92 at about 4.00 p.m. Gajanand was operated by Dr. M.M. Gogha and his team. On 8.7.92 PW 1 Dr. G.R. Tanwar on the basis of clinical, radiological examination and operation motes vide report Ex. P2, opined that injury Nos. 2 and 3 of M.L.R. Ex. PI sustained by Gajanand were dangerous to life while injury Nos. 4 and 5 were simple in nature. 8. On 2.7.92 PW 30 Ahmad Khan, I.O. seized and sealed blood-stained Kurta, Dhoti and Baniyan of Gajanand, which had knife cuts thereon corresponding to the injuries sustained by the latter. 9. Gajanand, who was undergoing treatment in the said hospital, succumbed to his injuries on 13.7.92 at 8.20 p.m. Medical Board comprising of PW 1 Dr. G.R. Tanwar and two other doctors conducted the medico legal autopsy of the deceased on 14.7.92 and as per post- mortem report Ex. P9 found following external injuries : 1. Healed scar with stitches mark long 3 cm. on the right side of the chest lower part laterally. Healed scar with stitches marks 3 cm. in length at epigastrium. 3. Healed operative scar 141/2cm. in length with stitches mark from epigastrium to umbilicus midline. 4. Healed scar with stitches marks 2cm. in length at left side of abdomen near umbilicus. 5. Healed scar with stitches marks 2 cm. in length at middle of left forearm posteriorly. 6. Healed scar with stitches marks 2cm. in length at middle of left forearm posteriorly. On dissection the doctors found that the liver was pale having stitched wound on the lower surface of left lobe 41/2cm. in length, and lower surface of right and left lobe 7 cm. in length. All the injuries were ante-mortem. 6. Healed scar with stitches marks 2cm. in length at middle of left forearm posteriorly. On dissection the doctors found that the liver was pale having stitched wound on the lower surface of left lobe 41/2cm. in length, and lower surface of right and left lobe 7 cm. in length. All the injuries were ante-mortem. The Medical Board opined that the cause of death was shock due to secondary hemorrhage. 10. PW 30 Ahmad Khan also conducted autopsy and prepared inquest report Ex. P12. Thereafter investigation in this case was conducted by PW 26 Rafiq Ahmad 51-10 PS Neem Ka Thana, who on 28.7.92 arrested appellant Birbal vide arrest memo Ex. P22. It is alleged that on 1.8.92 the appellant volunteered information's under Section 27 of the Evidence Act. Ex. P24 and Ex. P25 and in pursuance thereof on the same day, got recovered blood-stained Katarnuma 'knife hidden in the fodder stored in his 'Kachcha' house, vide recovery memo Ex. P15 and his blood-stained Shirt and Dhoti, vide recovery memo Ex. P-17. Those articles were also seized and sealed in different packets. 11. The sealed packets of the blood smeared soil, blood stained Dhoti, Kurta and Banivan of the deceased and blood-stained knife as also blood- stained Dhoti and Shirt of the appellant were sent to the State Forensic Science Laboratory for chemical examination. The Assistant Director and Serologist, F.S.L. vide his report dated 31.10.92 intimated that the blood smeared soil, Dhoti, Kurta and Baniyan of the deceased and the knife were stained with human blood having 'A' group, while no blood was detected on 'Dhoti and Shirt of the appellant. 12. After completion of the investigation, a challan was filed against appellant Birbal only for offences under Sections 302/34, 45 1 and 353, Indian Penal Code. Since co-accused Amichand could not be apprehended by that time, the challan against him was filed under Section 299, Criminal Procedure Code in the Court of the Additional Chief Judicial Magistrate, Neem Ka Thana, who in turn committed the case to the Court of Sessions. 13. The appellant was charged for the offence under Section 302 Indian Penal Code. He denied the accusation and claimed trial. To prove its case, the prosecution examined as many as 32 witnesses. 13. The appellant was charged for the offence under Section 302 Indian Penal Code. He denied the accusation and claimed trial. To prove its case, the prosecution examined as many as 32 witnesses. The appellant in his statement under Section 313,Cr.P.C. denied all the circumstances appearing against him in the prosecution evidence but admitted that he was transferred from Government Secondary School, Guhala to Government Secondary School, Rosava. He however asserted that his transfer was staved by the High Court. He claimed that he had neither given any voluntary disclosure statement to the Investigation Officer nor got recovered any article. He further claimed that a false case has been foisted against him. However, he did not adduce any evidence in defence. After trial, the learned Additional Sessions Judge by the impugned judgment convicted the appellant under Section 302 Indian Penal Code and sentenced him in the manner indicated above. Hence this appeal. 14. We have heard Mr. Jagdeep Dhankhar, the learned Counsel for the appellant, Mr. R.S. Agrawal, the learned Public Prosecutor and Mr. S.R. Bajwa, the learned Counsel for the complainant at length and carefully perused the record of the Trial Court in extenso. 15. Mr. Jagdeep Dhankhar has assailed the impugned judgment on multiple grounds. He vigorously canvassed that during trial the alleged sole eye witness PW 13 Ghasi Ram has resiled from his police statement Ex. P10, wherein he had stated that the appellant had taken out a knife from his pocket; that co-accused Amu Chand caught hold of Gajanand (deceased)and that the appellant thrust 3-4 knife blows in the abdomen of the deceased. On the other hand, he has deposed that he had seen the appellant inflicting knife blows on the wrist of the deceased outside the record room attached to the examination hall. He pointed out that even this fact has not been narrated by deceased Gajanand in his Pareha Barjan Ex. P31. Therefore, Ghasi Ram is not an eye witness and the teamed trial Judge has committed a patent error in placing reliance on the testimony of this witness. Mr. Dhankar pointed out that as per the earliest version of the incident incorporated in written report Ex. P7 submitted by PW 5 Chhoturam, deceased Gajanand was belaboured by the appellant and co-accused Amichand and that the latter has been tried separately and acquitted. 16. The next thrust of Mr. Mr. Dhankar pointed out that as per the earliest version of the incident incorporated in written report Ex. P7 submitted by PW 5 Chhoturam, deceased Gajanand was belaboured by the appellant and co-accused Amichand and that the latter has been tried separately and acquitted. 16. The next thrust of Mr. Dhankar's argument is that the oral dying declarational leged to have been made by deceased Gajanand in the presence of various prosecution witnesses is vague and bereft of any detail. Moreover, there is no cogent evidence to show that the deceased at that time was in a fit state of and or conscious condition to make such an oral statement. Hence the alleged oral dying declaration in does No. 1 inspire any confidence. As regards Parcha Bayan Ex. P31 of deceased Gajanand recorded Ex PW 31 Chatar Singh ASI, the contention of Mr. Dhankhar is that the doctor, who is alleged to have given a certificate on Tehrir Ex. P32 to the effect that deceased Gajanand was in a fit state to give his statement, has neither been examined by the prosecution nor has been named by Chatarringh, who also did not take any step for procuring presence of a Magistrate or the doctor or some respectable person at the time of recording Parcha Bayan Ex. P31 in the hospital from where the Courts are situated only at a distance of about 1 Km. Chatar Singh also disregarded the provisions of Rule 6.22 of the Rajasthan Police Rule, 1965. wherein detailed instructions for recording a dying declaration have been given. Mr. Dhankhar has submitted that even the version given in Parcha Bayan Ex. P31 does not find any corroboration from the material on record. Therefore, the learned trial Judge has committed serious error in placing reliance on Parcha Bayan Ex. 31. 17. Another plank of his argument is that the prosecution has deliberately suppressed material documentary evidence. As per the testimony of PW 15 Dr. Murarilal langir. MO Government Primary I Health Centre, Guahala. who had initially seen the injuries of deceased Gajanand and rendered first-aid to him he had written the treatment prescription at that time and sent the same to Mr. Kalyan Hospital, Sikar alongwith the patient (Gajanand). and that Mewaram compounder had accompanied him. But neither that prescription, which could through some light on the condition of deceased Gajanand, has been produced nor Mevaram has been examined. Kalyan Hospital, Sikar alongwith the patient (Gajanand). and that Mewaram compounder had accompanied him. But neither that prescription, which could through some light on the condition of deceased Gajanand, has been produced nor Mevaram has been examined. Besides this, on 1.7.92 Gajanand who condition was serious, was operated upon at Mr. Kalyan Hospital, Sikar by a team of doctors headed by Dr. M.M. Gogha, but the prosecution has not examined any of those doctors and thus deprived the Court of valuable piece of evidence regarding the condition of Gajanand and injuries sustained by him. Even the Bed Head Ticket of Gajanand has been screened from the Court by the prosecution, which was a valuable piece of evidence to ascertain the exact cause of death of Gajanand, who died on 14.7.92, i.e. 13 days after the incident. Mr. Dhankharhas asserted that the opinion report Ex. P2 of PW 1 Dr. G.R. Tanwar, Medical Jurist, to the effect that injury Nos. 1, 2 and 3 incorporated in M.L.R. Ex, PI of deceased Gajanand were dangerous to life, is not admissible in evidence because that is based on operation notes and admittedly Dr. Tanwar was not present at the time of operation of Gajanand nor the operation notes have been tendered in evidence by the prosecution. Even as per the postmortem report Ex. P3 the cause of death of Gajanand was shock due to secondary hemorrhage. Thus, there is no cogent, convincing and legally admissible evidence on record to prove that deceased Gajanand had died due to injuries sustained by him, and that those injuries were sufficient in the ordinary course of nature to cause his death. Mr. Dhankhar has pointed out that a careful perusal of post mortem report Ex. P3 indicates that the injuries sustained by the deceased were healed. Therefore, the possibility that secondary hemorrhage might have been caused due to infection can not be ruled out and it cannot be conclusively held that the cause of death of Gajanand was the direct result of the injuries sustained by the deceased. 18. Mr. Dhankhar has asserted that the alleged recovery of blood-stained knife Art. 1 and blood-stained clothes of the appellant at his instance have not been well proved. 18. Mr. Dhankhar has asserted that the alleged recovery of blood-stained knife Art. 1 and blood-stained clothes of the appellant at his instance have not been well proved. Moreover, material link evidence to establish that the seals of various packets, sent to the State Forensic Science Laboratory were not tampered with and that those remained in tact till they reached the F.S.L. is missing. As per statement of PW 27 Chandra Singh Head Constable, Incharge Malkhana sealed packets of this case were given to PW 25 Banwarilal Constable on 21.8.92, whereas the latter has deposed that those packets were given to him on 26.8.92, which he had deposited in the F.S.L. on the same day vide receipt Ex. P23 dated 31.8.92. Thus, the prosecution evidence in this regard is incomplete, contradictory and unreliable. 19. Another argument of Mr. Dhankhar is that the alleged motive for the crime has also not been proved and that the learned trial Judge has not correctly scrutinised, discussed and evaluated the prosecution evidence in right perspective and committed patent illegality of fact as also of law in convicting the appellant. 20. In the alternative, Mr: Dhankhar has submitted that in case the appellant is held guilty, and his acts attract the rigours of Section 300, Indian Penal Code then he is entitled to the benefit of Exception IV to Section 300 Indian Penal Code as the entire incident had taken place suddenly and without any premeditation. 21. On the other hand, Mr. R.S. Agrawal, learned Public Prosecutor as well as Mr. S.R. Bajwa, learned Counsel for the complainant have strenuously contended that the prosecution has adduced clear, cogent and convincing evidence to prove its case. PW 13 Ghasiratn though he has resiled from his police statement to the effect that in his presence, appellant Birbal had dealt with 3- 4 knife blows on the chest and abdomen of Gajanand, has clearly deposed that on hearing the noise, his attention was diverted and that he had seen the appellant inflicting knife blow on the wrist of Gajanand, who was coming out of the record room and that the latter was bleeding profusely. Gajanand immediately after he sustained injuries had informed all staff members of the School, who had assembled there, that Birbal had inflicted injuries to him by knife; that his oral dying declaration is neither bereft of details nor unreliable. Gajanand immediately after he sustained injuries had informed all staff members of the School, who had assembled there, that Birbal had inflicted injuries to him by knife; that his oral dying declaration is neither bereft of details nor unreliable. They have submitted that as per testimony of prosecution witnesses, at that time Gajanand was conscious and in a fit state to speak. Gajanand was immediately taken to Primary Health Centre, Guahala, where lie was given first-aid by Dr. Murarrlal, who referred him to Mr. Kalyan Hospital, Sikar. They have asserted that PW 1 Dr. G.R. Tanwar, Medical Jurist, Mr. Kalyan Hospital, Jaipur, had immediately informed Incharge Police Out-post Kaiyan Circle, Sikar, whereupon PW 1 Chatar Singh ASI Incharge of the said Police Out-post came to the hospital and recorded Parcha Bayan Ex. P31 of Gajanand,after the doctor had certified that he was in a fit mental state to give his statement. They have contended that admittedly, the said incident had not taken place within the jurisdiction of Police Station Sikar, hence PW 31 Chatar Singh was an independent person and he had yet simply recorded 'Parcha Bayan' Ex. P31 of Gajanand, who died 13 days thereafter, i.e. on 7.92. After on his death, his Parcha Bayan Ex. P31 was rightly treated by the learned trial Judge as dying declaration. In such circumstances, it was not necessary for Chatar Singh to have sent for a Magistrate for recording the Parcha Bayan of Gajanand. 22. Sarva Mr. Agrawaland Bajwa have also asserted that PW 1 Dr. G.R. Tanwar Medical Jurist examined injuries of Gajanand vide M.L.R. Ex. P1 and on the basis of his clinical findings and operation notes opined that injury Nos. 1, 2 and 3, which were caused by sharp edged weapon, were dangerous to life. Besides that, Dr. Tanwar also conducted post mortem examination on the dead body of Gajanand on 14.7.92 and on dissection found that the lower and middle part of the left lobe, as also lower surface of the right and left lobes of liver of Gajanand had stitched wounds. Thus, it is well-established that Gajanand had sustained injuries on his right and left lobe of liver, which is a vital part of the body. Thus, it is well-established that Gajanand had sustained injuries on his right and left lobe of liver, which is a vital part of the body. In such circumstances, non-production of the operation notes and the bed head ticket of Gajanand is not fatal to the prosecution case, and that the death of Gajanand was the direct result of the injuries sustained by him. They have submitted that the recoveries of the weapon of offence namely, knife Art. 1 as also blood-stained clothes of the appellant at the instance of the appellant stand been well proved. As per FSL report, those articles were stained with blood having "A" group. This fact incriminates the appellant with the crime. No, material link of the evidence is missing and that the motive of the crime has also been well-established. They have vehemently contended that from the evidence on record offence under Section 302 Indian Penal Code stands well proved against the appellant beyond reasonable doubt. They have supported the impugned judgment and reiterated the reasons given therein. 23. We have given our thoughtful and anxious consideration to the rival submissions made before us. Before we embark upon to decide various contentions raised before us, it will be conducive to closely scan, analyse and assess the evidence adduced in this case.24-25. The nature of prosecution evidence adduced in the present case comprises of ocular evidence of PW 13 Ghasi Ram, oral dying declaration made by Gajanand to the staff members of School immediately after the incident, his Parcha Bayan Ex. P31, medical evidence, recovery of weapon of offence knife Art. I, FSL Report and the motive for the incident. PW 5 Chhoturam, who was Officiating Head Master on the day of the incident, deposed that at about 30 a.m., he was sitting in his office and that Birbal and his cousin Ami Chand (co-accused) came there. Birbal requested him to allow him to join his duty. Thereupon he replied that since his predecessor in office had already relieved him (Birbal) from the School and that there was an entry to the effect in the attendance register also, therefore, he cannot take him on duties. The appellant then insisted that the proceedings relieving him on transfer were illegal. Thereupon he asked the appellant to get the order from the District Education Officer in this behalf and expressed his inability to permit him to join the duty. The appellant then insisted that the proceedings relieving him on transfer were illegal. Thereupon he asked the appellant to get the order from the District Education Officer in this behalf and expressed his inability to permit him to join the duty. Chhoturam stated that thereafter he went to the record room attached to the examination hall, that the appellant and co-accused Ami Chand also followed him and that in the verandah of the School appellant again requested to allow him to join his duty and assured that the District Education Officer would not take any action against him (Chhotu Ram). The appellant also told him that if he was permitted to join his duty on 1.7.92 then his leave for one and half months would be saved. But he flatly refused to oblige him without the order of the District Education Officer. Thereafter he went inside the record room, where Om Prakash, Sr. Teacher, PW 10 Jagdish Prasad,Sr. Teacher, PW 13 Ghasiram,Sr. Teacher and Narednra Sharma, Incharge Examination were sitting. PW 5 Chhoturam stated that after sometime the appellant and Amichand came inside the said record room and Gajanand Also followed them, where Birbal again insisted that he should be permitted to join the duty but he declined. Thereafter he alongwith Om Prakash left the record room. After 5-7 minutes, he heard hue and cry, whereupon he ran towards the said record room, where he saw Gajanand coming out from the examination hall. He told that Ghasiram and Jagdish had already reached there. Gajanand was bleeding from his chest and abdomen. Gajanand was made to lay down on the ping pong table. He wrapped a cloth around his injuries. He also sent for a jeep and took Gajanand to Guhala Hospital, where the doctor gave the first-aid and referred him to Sikar Hospital. PW 5 Chhoturam deposed that at about 11.311 a.m., Head Constable of Police Out-post Guhala came to the post office from where he was making a telephonic call to Police Station Neem Ka Thana about the incident. He told that the police accompanied him to the School. He deposed that when Gajanand was coming out from the examination hall he was crying, "Maar Diya, Maar Diya", while in his police statement Ex. He told that the police accompanied him to the School. He deposed that when Gajanand was coming out from the examination hall he was crying, "Maar Diya, Maar Diya", while in his police statement Ex. P6, Chhoturam at portion A to B had stated about the oral dying declaration made by Gajanand to the effect that appellant Birbal had dealt knife blows on his abdomen. The learned Trial Court permitted that A.P.P. to confront this witness under Section 162, Criminal Procedure Code regarding his version at portion A to B of his previous statement, Ex. P6, Chhoturam simply stated that he did not remember as to whether he had stated portion A B of Ex. P6 regarding the oral dying declaration of Gajanand or not to the police. This witness, therefore, did not have the courage to categorically deny about his previous statement at portion A to B of his police statement Ex. P6. Chhoturam deposed that he had submitted written report Ex. P7 to the HC, which was written and signed by him. It may be mentioned here that in written report Ex. P7 at portion C to D, it was mentioned by this witness that Gajanand (deceased) had Old him that Birbal and Amichand had inflicted knife blows to him. But during trial PW 5, Chhoturam stated that he had written portion C to D in Ex. P7 at the instance of police Head Coo stable. This explanation of Chhoturam does not appear to us satisfactory as it does not stand to reason that a person of the status of the Head Master of a Higher Secondary School would make such a wrong assertion in his report at the instance of the police Head Constable. Chhoturam deposed that when the Police Head Constable had asked him to incorporate portion C to D in written report Ex. P7, Om Prakash, Jagdish, Ghasiram and Narendra were also present there, but these witnesses have not corroborated him on this court. On the other hand, they have consistently deposed that Gajanand immediately after the incident had told them that Birbal had inflicted injuries on his abdomen and chest. Chhoturam admitted that he did not make any complaint against Head Constable. This clearly indicates that this witness has unsuccessfully tried to tell a lie regarding the alleged oral dying declaration made by Gajanand. Chhoturam admitted that he did not make any complaint against Head Constable. This clearly indicates that this witness has unsuccessfully tried to tell a lie regarding the alleged oral dying declaration made by Gajanand. It appears that for some extraneous considerations, PW 5 Chhoturam has tried to resile from the factum of the oral dying declaration made by the deceased, which clearly finds mention at portion C to D of his written report Ex. P7, as also in at portions A to B and C to D of his police statement Ex. P6. PW 5 Chhoturam in his cross-examination has stated that on telephone he had simply intimated the Police Station Neem Ka Thana that Gajanand had been assaulted by a sharp edged object at about 10.30 a.m. and asked the police to do the needful into the matter. However, the statement of PW 5 Chhoturam Jat in respect of the motive for the crime, the presence of appellant Birbal inside the record room, the scream raised by Gajanand and the injuries sustained by him on his abdomen and chest, has been consistent. Chhoturam in our view, is partly a reliable and partly unreliable witness.26. PW 2 Bhom Singh deposed that on 7.92, he was Physical Training Inspector in Government Secondary School, Gushala, that Birbal had already been transferred from Guahala School, that -on that day, at about 9.15 a.m., he alongwith other teachers was sitting and reading news paper in the School ground, that he heard the scream of Gajanand emanating from the examination hall and that thereupon, he alongwith Amar Chand (PW 12), Prem Chand (PW 9), Jainarain (PW 12), Mahadev (PW 4) and other staff members rushed to the examination hall, where they saw that Gajanand's clothes were soaked with blood and he was lying on a table in the verandah. He further deposed that at that time, Gajanand told them that Birbal had belaboured him and requested that he should be immediately rushed to the hospital. At that moment of time, he also saw the appellant Birbal and co-accused Amichand going away near the Volley Ball Court situated in the school campus. Immediately a jeep was sent for and Gajanand was taken to the hospital. At that moment of time, he also saw the appellant Birbal and co-accused Amichand going away near the Volley Ball Court situated in the school campus. Immediately a jeep was sent for and Gajanand was taken to the hospital. In his cross- examination, he admitted that he had not seen the actual incident but categorically stated that he had seen Gajanand coming out of the examination hall and Tying on the T.T. Table from a distance of 50 yards. It is worthwhile to mention here that not a single question was put to this witness regarding oral dying declaration made by Gajanand. We do not find any plausible reason to disbelieve the unassailed testimony of this witness.27. PW 4 Mahadev Ram Jat, Teacher has corroborated the sworn testimony of Bhom Singh and stated that on 1.7.92 at about 9.30a.m. news sitting in the school ground near water tank and that PW 2 Bhom Singh, PW 6 Suresh Chandra, PW 9 Prem Chand Saini and PW 12 Jai Narain were also sitting nearby; that they heard the scream and immediately thereafter saw Gajanand coming out of the examination hall, who had covered his abdomen by his hands. Gajanand fell down on the ping pong table. He stated that he rushed near Gajanand and saw that the latter's garments were stained with blood. By that time, PW 5 Chhoturam, PW 10 Jagdish Jat, and PW 13 Ghasiram had also reached there. This witness further deposed that when Gajanand was coming out of the examination hall he was also crying "Maur Diya, Maur Diya", and that at that time he had also seen appellant Birbal and Amichand going away from the school ground.28. PW 6 Suresh Jangid, Sr. Teacher stated that on the fateful day at about 9.30 a.m. he alongwith Mahavir, Mahadev, Prem Chand was reading news paper in the school ground and at that time, all of a sudden they heard cries emanating from the examination hall. At that moment of time, he saw appellant Birbal alongwith one person coming out of the examination hall, followed by Gajanand, who had caught hold of his abdomen. Gajanand lay down on a table in the verandah. Blood was oozing out from his injuries. He deposed that Gajanand was crying and told them that Birbal Meharia had inflicted knife blows to him. Gajanand lay down on a table in the verandah. Blood was oozing out from his injuries. He deposed that Gajanand was crying and told them that Birbal Meharia had inflicted knife blows to him. He further deposed that he had seen Birbal and his companion going away. He has proved site plan Ex. 18 as also seizure memo Ex. P9 of sample of blood scratched from the floor of verandah. In cross-examination, he stated that the examination hall is situated at a distance of about 30-40 yards from the place, where he was reading news paper. He admitted that appellant Birbal and his companion had left the school campus before he reached near Gajanand. Again, not a single question has been put to this witness regarding oral dying declaration made by Gajanand. We do not find any valid reason to disbelieve the statement of this witness.29. PW 9 Prem Chandra Saini, who was Lab. Assistant in the Government Secondary School, Guahala deposed that on 1.7.92 at about 30 a.m. he was reading news paper near water tank in the school ground, where Jainarain, Suresh Chandra, Bhom Singh and Mahadev were also present. All of a sudden, they heard the screams emanating from the examination hall and saw Gajanand coming out of the hall putting his hand over his stomach. His garments were soaked with blood. Gajanand lay down on T.T. Table in the verandah. He deposed that Gajanand told them that Birbal had belaboured him and asked them to take him to the hospital. This witness also specifically stated that when Gajanand was coming out of the hall, he had seen appellant Birbal alongwith one person going towards the school gate. Gajanand was taken to the hospital in a jeep. He deposed that Birbal and Gajanand had animosity regarding their transfer. Again not a single question has been put to him regarding the factum of oral dying declaration made by Gajanand. This witness has been cross examined at length but nothing material has been elicited to discard his testimony. In our opinion, he is an independent and reliable witness.30. PW 12 Jainarain Sharma, Sr. Again not a single question has been put to him regarding the factum of oral dying declaration made by Gajanand. This witness has been cross examined at length but nothing material has been elicited to discard his testimony. In our opinion, he is an independent and reliable witness.30. PW 12 Jainarain Sharma, Sr. Teacher stated that on the ill-fated day, at about 9.15a.m he was busy in admission work and the Mahadev, Bhom Singh, Prem Chand were reading news paper near him; that Gajanand came out of the examination hall crying and lay down on a ping-pong table in the verandah. At that time, Gajanand was crying, that knife blows have been inflicted to him and that he should be rushed to the hospital. This witness stated that he did not hear as to who had inflicted knife blows to Gajanand. He deposed that at that time he had also seen appellant Birbal alongwith a person going out near the school gate. We do not find any material contradictions or inconsistency in his statement.31. PW 3 Kaluram Yadav, Peon stated that on the day of incident at about 9.30 a.m. he was sitting in the office of Head Master, where Gajanand and Amar Chand Clerk were also present. Gajanand after taking the attendance register left the office. Amar Chand was busy in collecting fees from the students. After sometime, he heard hue and cry, whereupon, he went towards the examination hall and saw appellant Birbal having a blood-stained knife was running away alongwith one person. Gajanand's garments were soaked with the blood. Gajanand was crying that Birbal had belaboured him. He told that beak alongwith 4-5 persons made Gajanand to lie down on a bench from where he was taken to the hospital. He stated that on account of his transfer, Birbal bore animosity with Gajanand. In cross examination, he stated that he had seen at a distance of 3-4 paces from the examination hall and at that time, nobody tried to stop him. This witness has been cross examined at length but his testimony has remained unshaken and in tact. Once again, not a single question has been put to this witness regarding oral dying declaration made by Gajanand. He appears to be a reliable witness.32. PW 14 Amar Chand, UDC is the brother of deceased Gajanand. This witness has been cross examined at length but his testimony has remained unshaken and in tact. Once again, not a single question has been put to this witness regarding oral dying declaration made by Gajanand. He appears to be a reliable witness.32. PW 14 Amar Chand, UDC is the brother of deceased Gajanand. He deposed that on 1.7.92 at about 9.30 a.m. he was working in the school office, that Kaluram Peon was sitting by his side, that on hearing hue and cry, he ran towards the examination hall and saw appellant Birbal having a blood-stained knife in his hand and Amar Chand coming out of the examination hall. He challenged them and also raised alarm but they ran away. He deposed that thereafter Gajanand came out of the examination hall holding his stomach by his hands, that blood was oozing out of his injuries and that he made him to lie down on a ping-pong table. Thereafter, he and Chhoturam Head Master wrapped a cloth around Gajanand's injuries. Gajanand then was taken on a bench upto the school gate. He was sent in a jeep to the Government Hospital, Guahala, where the doctor gave him first-aid and told that the condition of Gajanand was serious and referred him to the Sikar Hospital. He told that he alongwith others to Gajanand to Sikar Hospital in a jeep, where his statement was recorded by the police. Gajanand was also examined by the doctor. He has proved seizure memo Ex. PI 1 of blood-stained Kurta, Dhoti and Baniyan of Gajanand. He deposed that Kurta and Banivan of Gajanand had three knife cuts on the left side and one cut on the right side. He deposed that Gajanand succumbed to his injuries in the evening on 14.7.92. He has proved inquest report Ex. P12 and identified knife Art. 1 and blood-stained garments of Gajanand Arts. 2, 3 and 4. In cross examination, he admitted that no test identification parade regarding the knife was conducted. He was confronted with his police statement Ex. D9 with regard to certain omissions, which are insignificant and not material. He told that he had reached Sikar Hospital at about 11.15 a.m. on the same day and that Parcha Bayan of Gajanand was recorded by the police in the hospital and that Gajanand was also admitted in the hospital. He was confronted with his police statement Ex. D9 with regard to certain omissions, which are insignificant and not material. He told that he had reached Sikar Hospital at about 11.15 a.m. on the same day and that Parcha Bayan of Gajanand was recorded by the police in the hospital and that Gajanand was also admitted in the hospital. He specifically stated that at that time, Gajanand was in a conscious and in a fit state of mind and that the doctor had also written on the Parcha Bayan that Gajanand was in a fit state of mind. This witness has valiantly withstood the test of cross examination and his testimony has remained unshattered. The Trial Court has rightly believed him.33. PW 10 Jagdish Jat, teacher stated that on 7.92 he was working inside the examination hall, that after completing his work he came out of that hall. Thereafter he heard the cries raised by Gajanand. He thereupon went running towards the examination hall and saw that appellant Birbal and his companion were coming out from the hall. When he reached near the gate of the hall, he also saw Gajanand coming out. Ghasiram was also with him. Gajanand had caught hold his abdomen and his clothes were stained with blood. Gajanand thereafter lay down on the tennis table and told that Birbal had dealt knife blows to him. Thereafter they brought a bench there and made Gajanand to lie down thereon and took him to the school gate, wherefrom he was taken to the hospital in a jeep. In cross examination he stated that Gajanand had come alone from the hall and had laid down on the T.T. Table and at that time, he was at a distance of 4-5 paces from him. Chhoturam had wrapped a cloth on the abdomen of Gajanand and that the flour of the hall as also the table top were stained with blood. The police had reached the school around at about 11.30 a.m. and taken his statement within half an hour. Not a single question was put to this witness regarding the oral dying declaration made by Gajanand. In our considered opinion, PW 10 Jagdish Jat is an independent and reliable witness.34. The police had reached the school around at about 11.30 a.m. and taken his statement within half an hour. Not a single question was put to this witness regarding the oral dying declaration made by Gajanand. In our considered opinion, PW 10 Jagdish Jat is an independent and reliable witness.34. PW 11 Bhanwarlal Rana, Peon deposed that on 1.7.92 at about 9 a.m. he was inside the room of the Head Master and thereafter he went inside the office room at that time. He heard hue and 'cry from the varandah of the school and saw that Gajanand Teacher was lying over a table and was crying that Birbal had inflicted knife blows to him and that he should be taken to the hospital. He deposed that when he was proceeding towards Gajanand, he had also seen appellant Birbal and one person coming out of the verandah. Gajanand's garments were soaked in the blood. A piece of cloth was wrapped around his injuries. He has also stated that on account of their transfer, Birbal and Gajanand had animosity. In cross examination, he stated that when he reached near Gajanand, by that time, Om Prakash and Chhoturam had already reached there; that the blood was lying scattered in about half foot area on the floor; that the police had arrived at the school around 10.30 a.m. and that his statement was recorded by the police on the same day. Again, not a single question has been put in cross examination regarding oral dying declaration made by Gajanand. The testimony of this witness is consistent and trustworthy.35. PW 13 Ghasiram, Sr. Teacher stated that he was preparing the progress reports sitting in the examination record room of the school, where deceased Gajanand was also working. He stated that on 1.7.92 at about 9-9.30 a.m., he was sitting in the examination record room alongwith Om Prakash, Narendra, Chhoturam Head Master, Jagdish and Gajanand. Appellant Birbal came there and asked the Head Master to allow him to join the duty but the latter declined and told the appellant to procure the orders of the District Education Officer. He stated that thereafter Chhotu ram, Om Prakash, Jagdish, Narendra left record room while he (Ghasiram) remained there. He was busy in preparing the progress reports. Gajanand (deceased), the appellant and Amichand were also sitting in that room. He stated that thereafter Chhotu ram, Om Prakash, Jagdish, Narendra left record room while he (Ghasiram) remained there. He was busy in preparing the progress reports. Gajanand (deceased), the appellant and Amichand were also sitting in that room. Ghasiram further stated that after sometime he heard sound of some commotion and at that time saw Gajanand falling down near the corner of that room. He also saw a knife in the hand of Birbal, who inflicted a knife blow on the wrist of Gajanand in his presence. Ghesi Ram deposed that he got frightened and came out of that room. The moment of time he came out of the room and entered into the examination hall, he heard cries of Gajanand "Maar Diya, Maar Diya". He further deposed that Gajanand also came out and told that Birbal had inflicted knife blows to him. At this stage, with the permission of the Court, this witness was confronted with portion A to B, of his police statement Ex. P10 to witness "Birbal Meharia Chakoo Pet Main 3-4 Baar Pet Main Ghonp Diya", to which he stated that he had not given such a statement.36. PW 13 Ghasiram further deposed that the hue and cry raised by Gajanand also attracted PW 5 Chhoturam, Jagdish, Amar Chand and others, who came running towards the examination hall and that he had also seen appellant Birbal and Amichand going away- through the gate of the examination hall. Gajanand putting his hand on his abdomen, came outside the examination hall and lay down on a table in the verandah PWs Chhoturam and Amar Chand wrapped a cloth around the adult men of Gajanand. Thereafter Gajanand was made to lie down on a bench. Immediately, a jeep was sent for and he was taken to the hospital Guahala. In cross examination, he told that since he was frightened, he could neither rescue Gajanand nor raise an alarm. This explanation appears to be quite natural. He denied the suggestion that he bore any enmity with the appellant. He stated that the floor of the hall as well as table top were stained with blood. He admitted that he did not tell to any person that he had seen appellant Birbal inflicting knife blow on the wrist of Gajanand. It is evident that in his police statement Ex. He stated that the floor of the hall as well as table top were stained with blood. He admitted that he did not tell to any person that he had seen appellant Birbal inflicting knife blow on the wrist of Gajanand. It is evident that in his police statement Ex. P10 he had stated that he had seen the appellant giving 3-4 knife blows on the abdomen of the deceased but during trial, he has resiled from this version and stated that he had seen the appellant inflicting knife blow on the wrist of the deceased. But the statement of Ghasi Ram has been consistent regarding the facts: (i) that immediately after the occurrence he had seen Gajanand falling on a corner of the record room, that the latter had sustained injuries on his abdomen and wrist, that he was bleeding, that he had seen appellant Birbal going away from the record room with a blood-stained knife in his hand and that Gajanand immediately after the incident had made an oral dying declaration before him and others, who had assembled there, that Birbal had inflicted knife blows to him. Again no question was put to this witness about the said dying declaration. PW 13 Ghasiram is therefore, a partly reliable and partly unreliable witness.37. PW 7 Jagdish Saini was Class IV servant in the Government Secondary School, Guahala. He stated that on 1.7.92 at about 9 a.m. he was in the office of the Head Master, where he delivered mail which he had brought from the post office and that 5-7 minutes thereafter, he heard hue and cry emanating from the examination hall. Thereupon, he went towards the examination hall and at that time, Kaluram and Amar Chand were also going towards the hall. He deposed that he had seen appellant Birbal having a knife in his hand and another person coming out of the examination hall. Gajanand, who had sustained injuries and whose clothes were stained with blood also came out from the examination hall and lay down on the table and told them that Birbal Teacher had inflicted knife blows to him and requested that he should he taken to the hospital immediately. Despite searching cross examination, the testimony of this witness has not been discredited. He appears to be natural and independent reliable witness.38. PW 8 Banwarilal Sr. Despite searching cross examination, the testimony of this witness has not been discredited. He appears to be natural and independent reliable witness.38. PW 8 Banwarilal Sr. Teacher deposed that on the ill-fated day, he was reading a book in the staff room that on hearing the cries, hustle and bustle he went towards the examination hall and saw that Gajanand was lying down on a table, that blood was oozing out from the stomach, that other staff members also assembled there, and that Gajanand told them that Birbal had inflicted knife blows to him. This witness has also stated that he had seen the appellant along with Ami Chand having a blood stained knife in his hand and one Amichand going away from the school. He deposed that Birbal bore enmity with Gajanand regarding his transfer. He has successfully withstood the test of cross examination and he appears to be a reliable witness.39. PW 17 Murarilal Retired Teacher has been declared hostile and he does not render substantial assistance to the prosecution.40. Thus, from the statements of aforementioned PWs it stands firmly established that on 1.7.92 appellant Birbal alongwith co-accused Amichand had come to the office of Headmaster Chhoturam, where appellant insisted that he should be permitted to join duty as a Teacher, but since he had already been relieved and there was no order of the District Education Officer, Chhoturam expressed his inability to accede to Birbal's request. Again, the appellant alongwith Amichand went inside the record room attached to the examination hall, and in the presence of PW 10 Jagdish Jat, PW 13 Ghasiram asked Chhoturam to allow him to join his duty, to which the latter declined. By that time, Gajanand had also come there. Thereafter PW 5 Chhoturam and Jagdish had come out of that room. PW 13 Ghasiram was duty in making progress reports of students inside the examination record room and after hearing commotion he saw Gajanand falling down in the comer of that room. Ghasiram also saw the appellant armed with knife. He also saw the appellant inflicting a knife blow on the wrist of Gajanand. This facts stands corroborated from the Parcha Bayan Ex. P31 of Gajanand. Ghasiram also saw the appellant armed with knife. He also saw the appellant inflicting a knife blow on the wrist of Gajanand. This facts stands corroborated from the Parcha Bayan Ex. P31 of Gajanand. Prosecution has also adduced voluminous consistent and credible evidence to prove that Gajanand had raised screams, which attracted teachers and staff members from the school ground as also from the school office; that Gajanand had sustained injuries on his abdomen, chest and wrist, and his clothes were soaked with blood. These prosecution witnesses had also seen appellant Birbal and Amichand coming out from the examination hall and going away towards the school gate. At that time, Birbal was armed with a knife, which was blood-stained, and that Gajanand made oral dying declaration before the aforesaid witnesses and told them in unequivocal and clear terms that Birbal had dealt knife blows causing injuries to him. As mentioned earlier, not a single question was put to any of these witnesses regarding oral dying declaration made by Gajanand. In such circumstances, the learned trial Judge has rightly relied upon the testimony of these witnesses.41. In this case, the motive of the crime has also been well proved by the testimony of PW 5 Chhoturam Head Master, PW 18 Mohanlal and PW 29 Sawai Singh Shekhwat District Education Officer, who has proved transfer order of appellant Birbal Ex. P29. A perusal of transfer order Ex. P29 indicates that deceased Gajanand Teacher was earlier transferred from Guahala to Government School, Rosava vide order No. 94 dated 15.1.92 but his transfer was cancelled and in his place vide order dated 24.1.92 Ex. P29 appellant Birbal, who was a surplus teacher in Government School, Guahala, was transferred as to Government Secondary School.42. PW 1 Dr. G.R. Tanwar Medical Jurist S.K.S. Hospital, Sikar deposed that on 1.7.92 at 45 p.m. he examined Gajanand, who was admitted in Male Surgical Ward and found (1) incised wound on the right side of his chest, (2) incised wound at the epigastrium, (3) incised wound on the left side of the abdomen near umbilicus, (4) incised wound at the middle of left thigh laterally, (5) incised wound on the left forearm posteriorly, as incorporated in MLR Ex. P1, and that all those injuries were caused by sharp edged weapon and duration thereof was between 4-12 hours. P1, and that all those injuries were caused by sharp edged weapon and duration thereof was between 4-12 hours. At the time of examination, general condition of Gajanand was serious and all those injuries were sufficient in the ordinary course of nature to cause his death. He stated that on the same day, Gajanand was operated upon by Dr. M.M. Gogna and his team and that operation notes were prepared, which were signed by him. However, in cross examination he admitted that he was not present during the operation of Gajanand. He stated that on the basis of operation notes and the bed head ticket, vide report Ex. P2 dated 8.7.92 he had given his opinion that injuries Nos. 1, 2 and 3 of MLR Ex. PI were dangerous to life while injuries Nos. 4 and 5 were simple in nature.43. PW 1 Dr. Tanwar further deposed that on 14.7.92 he had conducted post mortem examination on the dead body of Gajanand and found the external and internal injuries in the manner detailed in the postmortem examination report Ex. P3. He proved post mortem report Ex. P3 and opined that all those injuries were in ante mortem in nature and that the cause of death was shock due to secondary hemorrhage. Thus, from his testimony, it stands well-established that Gajanand had received injuries on his right and left lobe of liver which was the internal effect of injury No. 1 of MLR Ex. P1. He had also sustained incised wound on his epigastrium region and left side of the abdomen umbilicus, which are vital parts of the body. In his cross examination he admitted that if during operation if some part of the wound remains unstitched then the wound can open and may cause secondary hemorrhage.44. PW 31 Chatar Singh ASI deposed that on 1.7.92 he was Incharge of Police Outpost Kalyan Circle, Sikar and that on that day, he received letter Ex. P34 from S.K. Hospital to the effect that Gajanand was admitted in male surgical ward having multiple injuries and that thereupon he went to the Hospital and submitted report Ex. P32 to the Medical Officer on duty to testify as to whether Gajanand was in a fit state of condition to give his statement. He deposed that the doctor vide portion C to D on Ex. P32 to the Medical Officer on duty to testify as to whether Gajanand was in a fit state of condition to give his statement. He deposed that the doctor vide portion C to D on Ex. P32 gave his certificate that the patient was fit to give his statement and also put his signature thereon Thereafter he recorded Partial Bayan Ex. 1'31 of Gajanand, which bears his signature at A to B and signature of Gajanand at C to D. He stated that since glucose was being administered through a prick in his right hand, Gajanand had put his signature on Parcha Bayan Ex. P31 by his left hand and that a note to his effect was also made thereon. He stated that as the incident had taken place within the jurisdiction of Police Station Neem Ka Thana, he therefore, sent Parcha Bayan Ex. P31 and Tehrir Ex. P32 to the SHO PS Neem Ka Thana alongwith forwarding his letter Ex. P33 through Hanuman Singh LC. In cross examination he stated that he had received letter Ex. P34 of the doctor on 1.7.92 at 12 noon.. and thereafter he reached hospital at 12.30 p.m. He did not remember the name of the doctor, who has given certificate at portion C to D on Tehrir Ex. P32. He deposed that when he recorded statement Ex. P31 of injured Gajanand, the latter was conscious and in senses. He did not remember as to how many duty doctors were present in the hospital at that time. He admitted that he did not send for any Magistrate to record statement of Gajanand, nor did he request any doctor to record the statement of Gajanand nor called two police officers while recording statement. He stated that he d id not remember as to whether Amar Chand and Chhoturam were present at the time of recording of Parcha Bayan Ex. P31 of Gajanand nor he procured signatures of two independent persons thereon. He also stated that after recording Parcha Bayan Ex. P31 of Gajanand, he reached the Police Out-post at 1 p.m. and thereafter he did not go again to the hospital. He told that the injured had given his statement voluntarily and at his own accord and that whatever he had stated was recorded by him. He denied the suggestion that Parcha Bayan Ex. P31 of Gajanand, he reached the Police Out-post at 1 p.m. and thereafter he did not go again to the hospital. He told that the injured had given his statement voluntarily and at his own accord and that whatever he had stated was recorded by him. He denied the suggestion that Parcha Bayan Ex. P31 dogs not bear signature of Gajanand Chatar Singh told hat he did not contact Police out-post Guahala to find out the FIR number. Fie further stated that he even did not know at that timer as to whether any FIR was registered regarding the incident.45. PW 15 Dr. Murarilal Medical Officer, Government Hospital, Guahala deposed that on 7.92 at about 10 a.m. PW 5 Chhoturam Head Master came to the hospital and told him that Birbal Teacher had inflicted knife blows to Gajanand Teacher and asked to accompany him to the School, thereupon he went with Chhoturam and when he reached near the gate of the hospital, he saw that Gajanand was brought in a jeep there. He thereupon took Gajanand in the hospital, who had sustained one injury on his chest, two injuries on his abdomen, one injury on his left thigh and an injury on his left hand, Dr. Murarilal deposed that he immediately gave the first aid to Gajanand and put the dressing on his wounds. He gave pain killing medicines, anti-biotic drugs and also administered anti-tetanus injection and normal saline glucose and hemacline. He stated that he asked Gajanand as to how he sustained those injuries, thereupon Gajanand told him that Birbal teacher had inflicted knife blows to him. Since Cajanand's condition was serious, he referred him to Sikar Hospital. He also deputed Mevaram comp, under alone with necessary drugs to accompany the injured. He told that he did not medically examine Gajanand, who remained in his hospital for about 10 minutes only. He also made entries in the out-dour patient register regarding treatment given to injured Gajanand. He specifically stated that when Gajanand was brought to the hospital, he was conscious. However, he was sweating. Hesitated that he did not record the statement of Gajanand. Since Dr. Murarilal had not medically examined Gajanand and jotted down hi, injurie', non- production of his letter, by which Gajanand was referred to S.K. Hospital Sikar, is not at all fatal to the prosecution. However, he was sweating. Hesitated that he did not record the statement of Gajanand. Since Dr. Murarilal had not medically examined Gajanand and jotted down hi, injurie', non- production of his letter, by which Gajanand was referred to S.K. Hospital Sikar, is not at all fatal to the prosecution. In our considered opinion, the learned trial Judge has not erred in placing reliance on the testimony of this witness.46. PW 28 Damodar is son of Gajanand (deceased). He stated that on 1.7.92 he was working as reacher in the Government Upper Primary School, Tewari, where at about 11) a.m. Hanshram informed him that Birbal had inflicted injuries by knife blows to Gajanand. Thereupon, he came by jeep to Guahala Hospital, where the doctor asked him to take Gajanand to Sikaras the latter's condition was serious. He, therefore, brought Gajanand to Sikar Hospital, where he was admitted. He stated that appellant Birbal bore enmity with his father due to his transfer from Guahala School. He stated that he had handed over the blood-stained Kurta, Banivan, Dhoti Arts. 3 to 5 of his father to the police, and has proved seizure memo dated 2.7.92 Ex. P11. In cross examination he deposed that Gajanand was in a conscious state of mind and that he was admitted in Sikar Hospital at about 12.30-12.45 p.m. on the same day. He deposed that immediately after Gajanand was admitted in Sikar Hospital, the police arrived there and recorded statement of his father Gajanand and at that time, Gajanand was not unconscious and that the police of Neem Ka Thana had reached Sikar on that day at 7-8 p.m.47. PW 16 Satyanarain motbir had proved the seizure memo Ex. P11 of blood-stained garments of Gajanand. PW 20 Totaram has stated that on 1.8.92, appellant Birbal in his presence got a blood-stained knife Art. 1 recovered at his instance from a Kacha thatched house situated in his Nohra, which was seized and sealed by the Investigating Officer vide recovery memo Ex. P15. Heal so proved site plan Ex. P16 of the place, where the knife Art. 1 was recovered. Totaram further stated that the appellant also got recovered his garments from an Almirah from-his Pucca house vide recovery memo Ex. PI 7. His statement stands fully corroborated by the testimony of PW 26 Rafiq Mohd. SHO, P.S. Neem Ka Thana, who has proved memos Ex. P15 to Ex. P18.48. Totaram further stated that the appellant also got recovered his garments from an Almirah from-his Pucca house vide recovery memo Ex. PI 7. His statement stands fully corroborated by the testimony of PW 26 Rafiq Mohd. SHO, P.S. Neem Ka Thana, who has proved memos Ex. P15 to Ex. P18.48. The prosecution has examined PW 19 Pokhar Jat compounder, PW 22 Dr. Bhagwan Das and PW 23 Shrawan Kumar Rana, Ward Attendant to prove the conduct of appellant Birbal after the incident. PW 22 Dr. Bhagwan Dass deposed that on 1.7.92, he was posted as Medical Officer, Primary Health Centre Gudha; that on that day, appellant Birbal came to him and told that he was not feeling well for last I or months and that his cough contained blood and that he wanted to take treatment from him. Thereupon he prescribed treatment to Birbal and also made an entry in the out-door patient register at S.No. 7661. He diagnosed Haematite sand he advised him to take rest for ten days. He also issued a sickness certificate in his favour, office copy thereof is Ex. P20, which bears his signature. Birbal had also put his signature in his presence on Ex. P20. He deposed that the appellant had requested to get him admitted in his hospital but keeping in view his ailment, he did not deem it necessary to get him admitted in the hospital. He advised Birbal for X-ray examination and asked his to come after 1-2 days to show his X-ray plate. In cross examination, this witness stated that he identified Birbal because he had come from Guahala to Gudha for treatment after covering a distance of about 40 kms. and that he had also consulted him at his house. He replied in the affirmative to the suggestions made on behalf of the appellant that the latter had informed him that he had come to a nearby village and as such he had come to take treatment from him. This witness also stated that his ward attendant Shrawan Kumar had made entries in the outdoor patient register Ex. P21.49. PW 23 Shrawan Rana Ward Attendant, Government Hospital Gudha has corroborated the testimony of Dr. Bhagwan Das and proved entry F.x. P21. However, he stated that he could No. 1 identify Birbal.50. PW 19 Pokhar Compounder deposed that he was Male Nurse Cr. P21.49. PW 23 Shrawan Rana Ward Attendant, Government Hospital Gudha has corroborated the testimony of Dr. Bhagwan Das and proved entry F.x. P21. However, he stated that he could No. 1 identify Birbal.50. PW 19 Pokhar Compounder deposed that he was Male Nurse Cr. 11 in the Primary Health Centre, Gudha and that on 21.7.1992, the Investigating Officer had seized the medical certificate book vide seizure memo Ex. P14.51. From the statements of these witnesses, it transpires that on 1.7.92 after the incident the appellant wanted to get himself admitted in a Government Hospital, Gudha to create evidence for his alibi.52. PW 21 Rekharam Constable deposed that on 1.7.92 he was posted at Police Out-post Guahala and on that day, report Ex. P7 was handed over to him by PW 30 Ahmed Khan Head Constable at 11.30 a.m., which he submitted before Shishupal Singh ASI Incharge Police Station Neem Ka Thana at 3.30 p.m. on the same day, who drew formal FIR Ex. P19. In cross examination he stated that on that day he proceeded from Guahala by bus but since that bus had gone out of order, he reached Neem Ka Thana at 3.30 p.m. We do not find valid reasons to disbelieve his statement and there is no inordinate delay in this case regarding lodging of FIR.53. PW 25 Banwarilal Constable stated that on 26.8.92 four sealed packets of this case were handed over to him, which he had deposited in the State Forensic Science Laboratory vide receipt dated 31.8.92 Ex. P23 in the same sealed condition. He stated that he had deposited those packets on 8.92 in the F.S.L. and that F.S.L. receipt Ex. P23 remained with him for 4-5 days, which he deposited in the Police Station on 31.8.92. A perusal of report Ex. P23 reveals that statement of Banwarilal regarding the date of deposit of four sealed packets in the F.S.L. is apparently wrong, because as per F.S.L. receipt Ex. P23, four sealed packets, which were forwarded to the F.S.L. vide letter dated 26.8.92 in this case were deposited on 31.8.92. It appears that due to lapse of memory Banwarilal has deposed against the contents of F.S.L. report Ex. P23. Hence this inconsistency is not material.54. P23, four sealed packets, which were forwarded to the F.S.L. vide letter dated 26.8.92 in this case were deposited on 31.8.92. It appears that due to lapse of memory Banwarilal has deposed against the contents of F.S.L. report Ex. P23. Hence this inconsistency is not material.54. PW 27 Chancier Singh Head Constable deposed that he was Malkhana Incharge of Police Station Neem Ka Thana, that on 2.7.92 three sealed packets were handed over to him by the Investigating Officer, which he deposited in the Malkhana vide Malkhana register entry Ex. P26. Again on 2.8.92, two sealed packets were handed over to him by the Investigating Officer in this case, which he deposited in the Malkhana vide Ex. P27. He stated that on 21.8.92 (it appears to be typographic error in this statement and it should be 26.8.92) he had handed over four sealed packets of this case to Banwari lal Constable for depositing those in the F.S.L. and that the latter had submitted F.S.L. receipt dated 31.8.92 Ex. P23 to him. In cross examination he however, stated that those sealed packets were given by him on 31.8.92. Apparently, this part of his statement is also against the record because as per the contents of the F.S.L. receipt Ex. P23, the four sealed packets of this case were sent to the F.S.L. vide forwarding letter No. 13082 /13 dated 26.8.92. It appears that this witness has given his statement in a careless manner but for the a lapse, it cannot be said that the material ink evidence is missing in this case. In our considered opinion, since these two witnesses have proved documents Ex. P23, P26, and 27, their testimony, which is contrary to the contents of the said documents can not be taken as true. This lapse on their part is not fatal to the prosecution case. There is no reason to disbelieve testimony of Banwarilal to the effect that he had deposited four sealed packets of this case to the F.S.L. in sealed condition. Moreover, no question has been put to these witnesses in cross examination to suggest that the seals of those packets were tampered with.55. PW 30 Ahmed Khan Head Constable, who conducted the initial investigation in this case stated that on 1.7.92, at about 11.31) a.m. Chhoturam Head Master submitted written report Ex. Moreover, no question has been put to these witnesses in cross examination to suggest that the seals of those packets were tampered with.55. PW 30 Ahmed Khan Head Constable, who conducted the initial investigation in this case stated that on 1.7.92, at about 11.31) a.m. Chhoturam Head Master submitted written report Ex. P7, whereupon he after jotting down police proceedings (Karyawahi police) thereon, handed over the same to PW 21 Rekharam F.C. for taking the same to SHO, PS Neem Ka Thana for registration of the case.56. Ahmad Khan categorically stated that when Chhoturam has submitted written report Ex. P7, it already contained portion C to D and that the said portion C to D was not written by Chhoturam at his instance or under any pressure. This portion C to D of Ex. P7 runs as under: "Mr. Gajanand, Adhyapak ne bataya ki mujhe jaldi se Aspatal le kar chalo, mere Birbal and Amichand ne chaku maar diya hai". Most of the aforementioned PWs, who were staff members of the said School, have been cross examined by the appellant and they have consistently stated in one voice that in their presence Gajanand had told them that Birbal had inflicted injuries to him by knife blows and that at that time, PW 5 Chhoturam Jat Officiating Head Master was also present. None of these witnesses has stated that PW 30 Ahmed Khan had put pressure on Chhoturam to include portion C to D in his written report Ex. P7. It appears that PW 5 Chhoturam due to some extraneous consideration has unsuccessful tried to invent a new story during trial and told that he had written portion C to D in written report Ex. P7 at the instance of PW 30 Ahmed Khan. Therefore, this part of Chhoturam's statement cannot be believed.57. PW 30 Ahmad Khan stated that he reached Guahala School at about 11.45 a.m. on 7.92, where he orally interrogated various witnesses and that on receipt of written Ex. P7 after registration of the crime at Police Station Neem Ka Thana, he prepared site plan Ex. P30. He stated that he scratched the blood lying on the floor of the verandah outside the examination hall, and seized and sealed the same vide seizure memo Ex. P9. Heal so recorded statements under Section 161, Criminal Procedure Code of Bhom Singh, Chhoturam, Ghasiram, Murarilal, Exs. P30. He stated that he scratched the blood lying on the floor of the verandah outside the examination hall, and seized and sealed the same vide seizure memo Ex. P9. Heal so recorded statements under Section 161, Criminal Procedure Code of Bhom Singh, Chhoturam, Ghasiram, Murarilal, Exs. P5, P 6, P10, and P13 respectively as also statements of other witnesses marked as Ex. D1 to D10 and D12 on 1.7.92. Ahmad Khan has thus conducted in this case promptly, and we do not find anything abnormal in the investigation conducted by him.58. PW 26 Rafiq Ahmad SHO, P.S. Neem Ka Thana conducted the investigation in this case from 14.7.92, i.e. after the death of Gajanand. He arrested appellant on 28.7.92 vide arrest memo Ex. P22. PW 22 Sajjan Singh has also stated likewise. Rafiq Ahmed deposed that on 1.8.92, appellant volunteered information's Ex. P24 and Ex. P25 and that in pursuance thereof on the same day, in the presence of the motbirs got recovered a blood-stained knife and his blood- stained garments from his house, which were seized and sealed by him in separate packets vide recovery memos Exs. P15 and P 17 respectively. He also proved site plans Exs. P16 and P18 pertaining to those recoveries. He has also identified Arts. I to 4 in this Trial Court.59. As per F.S.L. report, blood smeared soil taken from verandah of the School, Dhoti, Kurta and Baniyan of deceased Gajanand and knife Art. 1, were stained with human blood and that the blood on the aforementioned garments of the deceased and the blade of knife Art. 1 was of 'A' group. However, no blood could be detected on Dhoti and shirt of the appellant. The blood group of the blood smeared soil could not be determined as the control thereof was not available. The contents of the F.S.L. were specifically put vide question No. 36 under Section 313, Criminal Procedure Code to the appellant, to which he simply pleaded ignorance. Thus, the recovery of Art. 1 at the instance and from the possession of the appellant incriminates him with the crime. The appellant has not adduced any evidence in his defence.60. Now we take up various arguments advanced by the learned Counsel for the appellant. In written report Ex. P7 it has not been mentioned that PW 13 Ghasiram was an eye witness to the incident. This report Ex. The appellant has not adduced any evidence in his defence.60. Now we take up various arguments advanced by the learned Counsel for the appellant. In written report Ex. P7 it has not been mentioned that PW 13 Ghasiram was an eye witness to the incident. This report Ex. P7 was written by Chhoturam, Acting Head Master, who was not an eye witness. However, PW 13 Ghasiram in his police statement Ex. P10 dated 7.92 vide portion A to B stated that Birbal took out a knife from his pocket; that Amichand caught hold of Gajanand, who was sitting over there and that thereafter appellant Birbal dealt 3- 4 knife blows on the stomach of Gajanand. But during trial, this witness resiled from this part of his statement and stated that on noticing the commotion, he saw that Gajanand was falling down in the corner of the record room and that in his presence Birbal had inflicted a knife blow on the wrist of Gajanand outside the examination record room. This fact also finds mention in Parchu Bayan Ex. P31 of Gajanand, wherein it was specifically mentioned by Gajanand that when he came in the verandah then Birbal dealt a knife blow causing injury on his left hand. But, Ghasiram in his police statement Ex. P10 has not attributed injuries sustained by Gajanand on his wrist to the appellant nor has stated anything about it. While discussing statement of PW 13 Ghasiram in details,we have held that this witness cannot be believed about the injuries sustained by Gajanand on his wrist. It has also been observed by us that Ghasiram's testimony regarding other material aspect of the prosecution case namely, (i) that immediately after the incident, he had seen appellant Birbal having blood-stained knife in his hand and Amichand going away from the examination record room, (ii) that he had seen Gajanand injured having injuries on his chest and stomach, which were bleeding, and (iii) that Gajanand had made an oral dying declaration in his presence to the effect that appellant Birbal had dealt him by knife blows and caused injuries to him, has been consistent and this part of his statement has been corroborated by the testimony of various prosecution witnesses. Thus, even if it is held that Ghasiram was not an eye witness to the incident still then, keeping in view the above facts proved by voluminous evidence adduced by the prosecution, it stands firmly established that appellant Birbal was the author of the injuries sustained by Gajanand. Ami Chand was absconding and he could not be apprehended till the challan was filed against Birbal and against Amichand under Section 299, Criminal Procedure Code. Later on, Amichand was arrested, a supplementary challan was filed against him and he was also tried separately. Since no specific overt act was attributed to Amichand, by Gajanand in his Parcha Bayan Ex. P31 he was acquitted. As mentioned earlier, PW 5 Chhoturam, who lodged FIR Ex. P7 was not an eye witness. Therefore, simply by his acquittal, the prosecution evidence, adduced against appellant Birbal does not loose its strength and credibility and the prosecution case cannot be thrown over the board on this count.61. In Nadodi Jayaraman v. State of Tamil Nadu (1992 Supp. (3) SCC 161) , it has been held that maxim falsus in uno falsus in omnibus cannot be mechanically applied, and merely because of the acquittal of the co-accused finding some testimony of some partisan witnesses unreliable, the conviction of other accused appellants cannot be interfered with, when the same is based on conscientious scrutiny of evidence. In other words, mere fact that the evidence of some prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the whole body of their testimony. It only puts the Court on its guard to carefully scrutinise their evidence.62. In the instant case, co-accused Amichand was tried separately and allegations levelled against him were different from the specific allegations and particular acts attributed to appellant Birhal. Therefore, we do not find substantial force in the contention raised by Mr. Dhankhar that since Ghasiram is not an eye witness and co-accused Ami Chand has been acquitted in a separate trial, the prosecution evidence adduced in this case should be disbelieved and discarded.63. Another contention of Mr. Therefore, we do not find substantial force in the contention raised by Mr. Dhankhar that since Ghasiram is not an eye witness and co-accused Ami Chand has been acquitted in a separate trial, the prosecution evidence adduced in this case should be disbelieved and discarded.63. Another contention of Mr. Dhankhar that the alleged oral dying declaration made by deceased Gajanand is vague and bereft of any details cannot be accepted in view of the clear, consistent and convincing testimony of the prosecution witnesses namely PWs 2, 3, 4, 6, 7, 8, 10, 11, 12 and 14, who have in one voice deposed that immediately after the incident, Gajanand had told them that appellant Birbal Teacher had belaboured him by inflicing knife blows and caused injuries to him. Moreover, as pointed out, not a single question was put to these witnesses regarding oral dying declaration made by Gajanand. All these witnesses have stated that Gajanand was conscious and in a fit condition to speak. There is no reason to disbelieve them. Even PW 15 Dr. Murarilal Medical Officer Government Hospital, Guahala, who had given first aid to Gajanand has categorically stated that when Gajanand was brought before him, he was conscious and in a fit state of mind and that he had also told him that Birbal Teacher had inflicted knife blows to him. In such circumstances, the prosecution by adducing voluminous evidence has proved beyond reasonable doubt that Gajanand has made the said oral dying declaration and stated that appellant Birbal had inflicted knife blows and caused injuries to him. In our considered opinion, the said oral dying declaration was neither vague nor shorn of details, on the other hand, the oral dying declaration made by Gajanand immediately after the incident was spontaneous, voluntary and without prompting or tutoring. In Re. Parcha Bayan Ex. P31.64. PW 31 Chatar Singh ASI Incharge Police Outpost Mr. Kalyan Circle, Sikar had no animus against appellant Birbal. He also did not have any sinister design to falsely implicate the appellant. He was neither the Investigating Officer in this case nor he was posted within territorial jurisdiction of Out-post Guahala and Police Station Neem Ka Thana. Not a single question has been put to him in cross examination to project that he was in any way on inimical term with the appellant or interested in the deceased. He was neither the Investigating Officer in this case nor he was posted within territorial jurisdiction of Out-post Guahala and Police Station Neem Ka Thana. Not a single question has been put to him in cross examination to project that he was in any way on inimical term with the appellant or interested in the deceased. From the evidence recorded in this case, it stands well proved that on receipt of letter Ex. P34 of Dr. G.R. Tanwar Medical Jurist, S.K. Hospital, Sikar to the effect that Gajanand having multiple injuries had been admitted in Male Surgical Ward, Chatar Singh ASI. He immediately rushed to the said Hospital and submitted letter Ex. P32 to the medical officer to testify as to whether Gajanand was in a fit condition to give his statement of not. PW 31 has deposed that the doctor after examining Gajanand gave his certificate at portion C to D of Ex. P32 to the effect that the patient was fit for giving a statement. The doctor also signed the said certificate at portion E to F on Ex. P32. It is true that the prosecution has not examined that doctor and Chatar Singh has also failed to name him but still then we find no valid reason to disbelieve the sworn testimony of Chatar Singh especially when he had no enmity with the appellant nor he was an Investigating Officer in this case nor he was in any way interested in Gajanand. As a matter of fact, Chatar Singh did No. 1 intend to record a dying declaration of Gajanand because at that time, there was no apprehension or expectancy of the death of Gajanand, who died after 13 days i.e. on 14.7.92. By that time, Cha tar Singh also (lid not know, whether any case was registered at Police Station Neem Ka Thana about the incident. He also did not record Parcha Bayan Ex. P31 of Gajanand during investigation in this case. Therefore, Parcha Bayan Ex. P31 is also not hit by provisions of Section 162 of the Evidence Act. In the letter Ex. P34 sent by the Medical Jurist there was no mention that Gajanand was in a serious condition. PW 15 Dr. Murarilal Medical Officer, Guahala deposed that Gajanand was in conscious condition and was able to speak. Therefore, Parcha Bayan Ex. P31 is also not hit by provisions of Section 162 of the Evidence Act. In the letter Ex. P34 sent by the Medical Jurist there was no mention that Gajanand was in a serious condition. PW 15 Dr. Murarilal Medical Officer, Guahala deposed that Gajanand was in conscious condition and was able to speak. In such circumstances, in our view, it was not necessary for Chatar Singh to have sent for a Magistrate for recording statement of Gajanand because at that time, he was not recording a dying declaration and the provisions of Rule6.22 of Police Rules were not applicable. It was only after 13 days of the incident, when Gajanand died that this Parcha Bayan Ex. P31 became admissible in evidence under Section 32 of the Evidence Act. Parcha Bayan Ex. P31 was immediately sent by Chatar Singh to SHO, P.S. Neem Ka Thana on the same day vide letter Ex. P33 alongwith a certificate of the doctor, which has jotted down on Ex. P32.65. Mr. Dhankhar has placed reliance on the decision in Shakuntla v.State of Punjab(1994 SCC (Cr.) 1781) , wherein it has been reiterated by the Apex Court that to base a conviction on the basis of the dying declaration, the Court must satisfy that it is wholly reliable and it should not suffer from any major infirmity. If there are some infirmities, then the Court should examine, whether they are fatal or whether there is any corroborative evidence, which supports the prosecution evidence and renders the dying declaration acceptable. In that case, there was inconsistency in the dying declaration, it was also doubtful as to whether the deceased was in a proper mental condition or not while making such dying declaration. The documents adduced in evidence in that case, clearly showed that the deceased was No. 1n a fit condition to make statement. In such circumstances, it was held that it was highly unsafe to base conviction entirely on such a dying declaration. We respectfully agree with the observations made by the Apex Court, but in the instant case, Parcha Bayan Ex. P31 of Gajanand recorded by Chatar Singh is neither short nor cryptic. On the other hand, it gives complete details of the incident. We do not find any material difference or inconsistency in details of the incident unfolded by Gajanand in his Parcha Bayan Ex. P31 of Gajanand recorded by Chatar Singh is neither short nor cryptic. On the other hand, it gives complete details of the incident. We do not find any material difference or inconsistency in details of the incident unfolded by Gajanand in his Parcha Bayan Ex. P31 and the version of the incident given by various prosecution witnesses.66. Mr. Dhankhar has also cited a case of Smt. Kalawati v.State of Rajasthan (1993 Cr.L.J. Rajasthan 798), wherein it has been held that the police officer may certainly record dying declaration if there is no time or facility available for recording of the same in a better mode but in that case, the police officer must conform to the requirements of the relevant rules and instructions. It was held in that case that the manner in which the police officer recorded dying declaration disregarding provisions of Rule 6.22 of the Rajasthan Police Rules raised strong suspicion and the same was not acted upon. But the facts of that case are clearly distinguishable with the fact sand circumstances of the case on hand.67. The next case relied upon by Mr. Dhankhar is of State of U.P. v. Madan Mohan ( AIR 1989 SC 1519 ) , wherein the presence of the Investigating Officer at the place of occurrence was found doubtful. No independent witness from the locality whose presence would be natural, was examined. The prosecution suppressed the genesis of the crime. There was no explanation by the prosecution about the injuries sustained by one of the accused persons and the prosecution version about the occurrence materially differed from the version given in the dying declaration. Keeping in view the afore- mentioned infirmities, the Apex Court rejected the appeal filed by the State and confirmed the order of acquittal passed by the High Court. Apparently, such are not the facts here and therefore, the case law cited by Mr. Dhankhar do not render substantial assistance to the appellant.68. In State of Punjab v. Amarjit Singh (AIR SC 2013) , it has been held that the practice of the Investigating Officer in recording a dying declaration during course of the investigation should not be encouraged and it would be better to have dying declaration recorded by a Magistrate but no hard or fast rule can be laid down in this regard, because it all depends upon fact sand circumstances of each case. In that case, the Investigating Officer belonged to Police Station "B", where the deceased was alleged to have sustained burn injuries and upon intimation by a wireless message, that the deceased was admitted in the hospital "L", he straight- away went to that place, met the doctor and recorded statement of the deceased; the FIR was drawn on the basis of that statement and the investigation went on accordingly at "B", which was situated at a distance of 90 kms. from "L". It was held that in such circumstances, no fault could be found with the Investigating Officer in getting dying declaration recorded by a Magistrate. As mentioned earlier, in the case on hand, Chatar Singh was neither the Investigating Officer in this case nor he had any animosity against the appellant, nor the incident had taken place within the territorial jurisdiction of Sikar Police Station. Hence Arnarjit's case (supra) does not come to the rescue of the appellant. r,69. In Charipalli Shankararao v. P.P. Andhra Pradesh High Court (AIR 1995 SCC 777) , the dying declaration of the deceased, who sustained 90'Z, hums was recorded by a police Head Constable who earlier attempted to procure services of Magistrate for recording dying declaration, but Magistrate was not available. The Apex Court held that it was not the requirement of law that the persons making dying declaration should make an elaborate or exhaustive statement so as to cover each and every aspect of the incident and narrate the whole history of the case and that the police Head Constable was competent to record the dying declaration and that he had no reason to falsely implicate the accused in the incident.70. In Ramawati v. State of Bihar, AIR 1983 SCC 164 , it was observed by the Apex Court that there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement must necessarily depend upon the facts and circumstances of each particular case.71. In Beta Singh v.State of M.P. ( 1996 (4) SCC 203 =11 (1996) CCR 39 (SC), the dying declaration was recorded by a police officer in a bride-burning case. What evidentiary value or weight has to be attached to such statement must necessarily depend upon the facts and circumstances of each particular case.71. In Beta Singh v.State of M.P. ( 1996 (4) SCC 203 =11 (1996) CCR 39 (SC), the dying declaration was recorded by a police officer in a bride-burning case. It was held that such a dying declaration could be acted upon if the same is found to be true, coherent and consistent and free from any effort to prompt the deceased to make such a statement. On facts, the dying declaration recorded by the police officer was corroborated by that statement of the witness, who had heard the deceased telling those facts to the police officer. The case on hand, Gajanand immediately after the incident made oral dying declaration before more than half a dozen staff members of the School. PW 28 Damodar Prasad clearly deposed that immediately after Gajanand was admitted in the Hospital, Sikar the police came there and recorded his statement of Gajanand in his presence and at that time, Gajanand was fully conscious. Similarly as per the testimony of PW 14 Amar Chand, the doctor in his presence had given certificate in writting that Gajanand was fit for giving statement. There is no reason to disbelieve sworn testimony of Amar Chand and Damodar. In such circumstances, simply because the prosecution did not examine the doctor, who gave certificate and that Parcha Bayan Ex. P31 was recorded by Chatar Singh ASI, it cannot be held that it is not admissible in evidence or it does No. 1 inspire any confidence.72. In our opinion, Parcha Bayan Ex. P31 does not suffer from any material infirmity and the same is admissible in evidence under Section of the Evidence Act. The version unfolded in Parcha Bayan Ex. P31 is also not substantially at variance or inconsistent with the prosecution case. On the other hand, the contents of Parcha Bayan Ex. P31 stand fully corroborated by the statements of prosecution witnesses. The learned trial Judge has, therefore, not committed any error either of law or of fact placing reliance on Parcha Bayan Ex. P31. Hence the contention of Mr. Dhankhar in his regard are hereby repelled.73. We do not find any force in the contention of Mr. P31 stand fully corroborated by the statements of prosecution witnesses. The learned trial Judge has, therefore, not committed any error either of law or of fact placing reliance on Parcha Bayan Ex. P31. Hence the contention of Mr. Dhankhar in his regard are hereby repelled.73. We do not find any force in the contention of Mr. Dhankhar that the prosecution has deliberately suppressed material documentary evidence by not filing the prescription note written by PW 15 Dr. M.L. Jangid, Medical Officer, Primary Health Centre, Guahala, while referring injured Gajanand (deceased) to Mr. Kalyan Hospital, Sikar because the said doctor in his statement has given details of the drugs and the injection administered by him to Gajanand. He has also deposed that he had given those medicines and injections to maintain the blood pressure pulse and condition of Gajanand and also to check loss of blood from his injuries. In such circumstances, the letter of reference or prescription note of Dr. Murarilal was not at all a material document and non- production thereof does not raise any adverse inference against the prosecution. Similarly, it was not necessary for the prosecution to examine Mevaram compounder of Primary Health Centre, Guahala, who had accompanied injured Gajanand to Sikar because PW 1 Dr.G.R.Tanwar after the ad mission of Gajanand had immediately examined the injuries sustained by the latter. He has also prepared M.L.R. Ex. P1 for the injuries of Gajanand. It is true that Gajanand w as operated on 1.7.92 at about 4 p.m. and Dr. Tanwar was not present during the said operation. It would have been better for the prosecution to have filed operation notes and bed-head patient ticket of Gajanand were already incorporated by Dr. Tanwar in MLR Ex. P1 as also in post-mortem report dated 14.7.92 Ex. P3, non-production of those documents is not fatal to the prosecution. The operation notes and the bed-head ticket could have given an idea about treatment prescribed by the doctor to Gajanand and his condition till his death. Since Dr. Tanwar had conducted post mortem examination and seen the internal injuries sustained by Gajanand on the lobes of his liver, the production of operation notes was not essential.PW 1 Dr.Tanwar deposed that on clinical examination and on the basis of operation notes, he had given his opinion vide report Ex. P2 dated 8.7.92 that the injury Nos. 1 to 3 of MLR Ex. P2 dated 8.7.92 that the injury Nos. 1 to 3 of MLR Ex. P1 were dangerous to life. Even if we ignore report Ex. P2, which was also based on operation notes, still then the deposition of Dr. Tanwar about external and internal injuries seen by him on the person of Gajanand cannot he ignored. Dr. Tanwar deposed that on dissection, he had found stitched wounds on the lower part and middle part of left lobe as also lower surface of liver and left lobes, which were 4.5 cm. and 7 cm. in length respectively and that the colour of the liver was pale. He has further deposed that the injury Nos. 1 to 3 of MLR Ex. PI were sufficient in the ordinary course of nature of have caused death and that the cause of death was shock due to secondary hemorrhage. In such circumstances, non-production of the operation notes and the bed-head patient ticket if Gajanand does not adversely affect of prosecution case.74. As mentioned earlier, recovery of blood- stained knife Art. I at the instance and from the possession of the appellant has been well proved. No material link evidence regarding receipt of the sealed packet of knife Art. I and blood- stained garments of deceased in the State Forensic Science Laboratory is missing. As per F.S.L. report, the blood on the blade of the knife Art. I was of human origin and it was of "A" group of blood and the garments of deceased Gajanand were also found to be stained with the same blood group. A specific question was put to the appellant while recording his statement under Section 313, Criminal Procedure Code but he simply pleaded his ignorance and did not give any plausible explanation on this count.75. In Prakash v. State of M.P.(AIR 1993SC 11 (1992) CCR 260 (SC) fatal injuries to the deceased were inflicted by "Gupti", which was recovered at the instance of the accused. It was held that such recovery otherwise was not possible if the accused himself had not assisted for such recovery. The said "Gupti" was stained with human blood and no reasonable explanation was given by the accused for such blood-stains. The accused complicity in inflicting fatal injuries to the deceased by the Gupti was corroborated by the eye witness. Besides that there was a dying declaration of the deceased. The said "Gupti" was stained with human blood and no reasonable explanation was given by the accused for such blood-stains. The accused complicity in inflicting fatal injuries to the deceased by the Gupti was corroborated by the eye witness. Besides that there was a dying declaration of the deceased. The injuries inflicted by the accused on the person of the deceased were on vital parts of the body. The Apex Court maintained the conviction of the accused- appellant. Therefore, the recovery of knife Art. 1 at the instance of the appellant and the presence of human blood of Group 'A' on the knife as also in the blood-stained garments Arts. 2,3 and 4 of the deceased clearly implicates the appellant with the crime.76. In the instant case, the motive of the crime has also been well proved by PW 5 Chhoturam, PW 18 Mohanlal Ex-Head Master, PW 29 Shrawan Sahani District Education Officer and other prosecution witnesses. From their testimony, it stands fairly established that deceased Gajanand, who was working as Teacher in Government Secondary School, Guahala was earlier transferred to Government Secondary School, Rosawa vide order dated 15.1.92 but the said order was cancelled vide order Ex. P29 and in his place, appellant Birbal, who was working as a surplus teacher in Government Secondary School, Guahala was transferred to Rosawa. However, on the writ filed by appellant Birbal, his transfer was stayed till the end of the academic session of the School i.e. upto 21.5.92. Consequently, the appellant was relieved by PW Mohanlal, the then Head Master from Guahala Government Secondary School on 22.5.92. On re-opening of the school after summer vacations, i.e. on 1.7.92 appellant Birbal, who had already been relieved from Guahala School, came to PW Chhoturam and insisted that he should be allowed to join his duty after vacations, which would have saved his one and half months' leave but the latter declined to his request and asked him to procure necessary orders from the District Education Officer. Thus, the appellant had a grudge against deceased Gajanand because he was transferred from Guahala to Rosawa due to cancellation of the transfer order of the deceased. Other prosecution witnesses have also stated in one voice that due to his transfer appellant Birbal have animosity against Gajanand. Thus, the appellant had a grudge against deceased Gajanand because he was transferred from Guahala to Rosawa due to cancellation of the transfer order of the deceased. Other prosecution witnesses have also stated in one voice that due to his transfer appellant Birbal have animosity against Gajanand. At the time of the incident, Gajanand was present in the examination record room, where Chhoturam had categorically turned down the request of the appellant to permit him to join duty in the School. Hence in our considered view, this led to a patent and formidable motive for the appellant for committing the crime for which he has been charged.77. Mr. Dhankhar has vehemently contended that from the evidence recorded in this case, the offence made out against the appellant does not travel beyond Section 304 Part lI, Indian Penal Code and that the latter is entitled to the benefit of Exception (4) to Section 300 Indian Penal Code because, the incident had taken place in a very short time, suddenly and without any premeditation. PW 1 Dr. Tanwar examined the injuries of Gajanand on 1.7.92 at about 12.35 p.m. vide MLR Ex. P1 but he did not give his opinion about nature of injury Nos. 1 to 3 and 4 and advised X-ray on chest, abdomen and left forearm. Asper X-ray report, no bony injury was seen on the chest, abdomen, and left forearm of Gajanand.78. Dr. Tanwar on the basis of the clinical, radiological and operation findings by his report dated 8.7.92 Ex. P2 opined that injury Nos. 1 to of MLR Ex. P31 were dangerous to life of patient Gajanand and injury Nos. 4 and 5 were simple. Since admittedly, Dr. Tanwar was not present during operation nor original operation notes have been filed by the prosecution, the opinion given by Dr. Tanwar vide his report Ex. P2 deserves to be ignored. However, Dr. Tanwar alongwith other two doctors had conducted medico-legal autopsy of Gajanand, Dr. Tanwar vide post-mortem report Ex. P3, found healed scars with stitched marks on the right side of the chest, lower part at epigastrium, umbilicus, and at middle of left forearm, which correspond to injury Nos. 1 to 3,5 of MLR Ex. P1. Dr. However, Dr. Tanwar alongwith other two doctors had conducted medico-legal autopsy of Gajanand, Dr. Tanwar vide post-mortem report Ex. P3, found healed scars with stitched marks on the right side of the chest, lower part at epigastrium, umbilicus, and at middle of left forearm, which correspond to injury Nos. 1 to 3,5 of MLR Ex. P1. Dr. Tanwar further deposed that on dissection he found that the liver of Gajanand was pale and there were stitched wounds on lower and middle parts of left lobe, lower surface of right and left lobes of the liver. He has also opined that all the injuries were ante-mortem in nature and that the cause of death was shock due to secondary hemorrhage. He has not specifically mentioned in MLR Ex. P1 or in Post Mortem report Ex. P3 that injury Nos. to 3 of MLR sustained by Gajanand were sufficient in the ordinary course of nature, but during trial he has deposed that those injuries were sufficient in the ordinary course of nature to have caused death.79. Keeping in view the evidence on record, we proceed to find out as to what offence is made out against the appellant ? Section 299 Indian Penal Code defines culpable homicide. It lays down that whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely by such act to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. The principal question to be considered in this appeal is whether the offence disclosed by the facts and circumstances and established by the prosecution evidence against the appellant amounts to murder or culpable homicide not amounting to murder? "Culpable homicide" is genus while "murder" its species. All "murder" is culpable homicide, but riot vice versa.80. The principal question to be considered in this appeal is whether the offence disclosed by the facts and circumstances and established by the prosecution evidence against the appellant amounts to murder or culpable homicide not amounting to murder? "Culpable homicide" is genus while "murder" its species. All "murder" is culpable homicide, but riot vice versa.80. In State of Andhra Pradesh v. R. Punnayya ( AIR 1977 SC 45 ) , the Apex Court has indicated the broad guidelines and the proper approach of the Court in resolving the controversy as to whether the offence is murder or culpable homicide not amounting to murder in following terms : "Whenever a Court is confronted with the question whether the offence is 'murder' or culpable homicide not amounting, to murder on the facts of a case, it will be convenient for it4) approach the problem in three stages. The question to be considered at the first stage would be, whether the accused had done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Pena) Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' contained in Section 300. If the answer to this question is the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section depending, respectively, on whether the second or the third Clause of Section is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under Section First Part of Section 304, Penal Code. The above are only broad guidelines and not cast-iron imperatives. If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under Section First Part of Section 304, Penal Code. The above are only broad guidelines and not cast-iron imperatives. Sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not he convenient to give a separate treatment to the matters involved in the second and third stages." 81. In the instant case, the incident took place inside the examination record room of the school. PW 13 Ghasiram on noticing commotion saw that Gajanand was falling in the comer of the room, while appellant Birbal had blood-stained knife in his hand, by which he also inflicted injury on the left wrist of Gajanand near the gate. Immediately thereafter appellant alongwith his companion was seen leaving the examination hall by a number of PW s going away towards the school gate. Gajanand, who had sustained injuries on his chest and abdomen was bleeding and he had told to PWs2 to 4, 6 to 11 and 13 that appellant Birbal had caused injuries to him by knife blows. What transpired between appellant Birbal and Gajanand was within the special knowledge. But the appellant did not give any account of the incident either immediately after the incident or during trial when his statement was recorded under Section 313, Criminal Procedure Code. On the other hand, Gajanand immediately gave account of the incident through his oral dying declaration and thereafter in the form of his Parcha Bayan Ex. P31. PW 1 Dr. Tanwar has deposed that Cajan and had sustained injuries mentioned in the MLR Ex. P1 by one sharp weapon as width of injury Nos. to 3 was 1/2cm. and that those injuries were I 0 caused on vital parts of the body. Dr. Tanwar has also deposed that after conducting post mortem examination he had noticed internal injuries on both the lobes of the liver of Gajanand, and opined that those injuries were sufficient in the ordinary course of nature to cause his death. There is not a fringe of evidence to establish that secondary hemorrhage to healed wounds was caused due to infection, septicaemia or gangrene. Dr. There is not a fringe of evidence to establish that secondary hemorrhage to healed wounds was caused due to infection, septicaemia or gangrene. Dr. Tanwar has stated that the secondary hemorrhage to the wound could also take place if any part of the wound remained unstitched. In such circumstances, it cannot be held by any stretch of imagination that injury Nos. 1 to 3 of MLR Ex. P1 along with internal injuries on both the lobes of liver sustained by Gajanand were not the direct result of his death. On the other hand, from the evidence on record, it stands well proved that the death of Gajanand was due to injuries Nos. 1 to 3 of MLR Ex. P1 with internal injuries mentioned in Post Mortem Report Ex. P3 cased to him, which were sufficient in the ordinary course of nature to have caused death or likely to cause death and those injuries were intentionally inflicted by the appellant. Thus the act of appellant falls under Clause secondly as well as thirdly of Section 300 Indian Penal Code.82. In State of Haryana v. Pala ( 1996 (8) SCC 51 =1(1996) CCR 205 (SC) the head injuries caused with musals to the deceased were found sufficient to cause his death in the ordinary course of nature. The doctor had stated that septicaemia was not a disease and that it was the direct result of the head injury. In other words, the head injury was the cause of the death. It was held that the septicaemia was not the primary cause and that death was due to injuries caused to the deceased, which were sufficient in ordinary course to have caused death. The medical evidence established that the septicaemia was not primary cause of death but septicaemia being direct result of the head injury, the supervening event of septicaemia was not of any consequence as the death was only on account of the head injury. The Apex Court held that the case fell under Clause 3rd of Section 300 Indian Penal Code and reversed the contra-findings of the High Court and set aside the conviction of the accused under Section Part II Indian Penal Code and convicted him u/Section 302 Indian Penal Code read with Section 34 Indian Penal Code.83. The Apex Court held that the case fell under Clause 3rd of Section 300 Indian Penal Code and reversed the contra-findings of the High Court and set aside the conviction of the accused under Section Part II Indian Penal Code and convicted him u/Section 302 Indian Penal Code read with Section 34 Indian Penal Code.83. In Lyon's Medical Jurisprudence for India (Tenth Edn.) at page 222, the learned author has observed that danger to life depends primarily on the amount of hemorrhage on the organ wounded, and the extent of shock; secondarily on secondary hemorrhage, on the occurrence of septicaemia erysipelas, tetanus or other complications. In answering the question, whether a wound is dangerous to life, the danger must be assessed on the probable primary effects of the injury. Such possibilities as the occurrence of tetanus or septicaemia, later on, are not to be taken into consideration. In the case on hand, secondary hemorrhage is not the primary course and the death was due to injuries caused to the deceased Gajanand, which in the opinion of Dr. Tanwar were sufficient in the ordinary course of nature to have caused death.84. Mr. Dhankhar has placed reliance on Kishore Singh v. State of M.P. (AIR 1977 SC , wherein it has been held that in judging the injuries, whether they are sufficient in the ordinary course of nature to cause death, the possibility that skillful and efficient medical treatment might prevent the fatal result is wholly irrelevant. But, in view of some what hesitant medical opinion with regard to the cause of death given by the doctors and further fact that the deceased died a month after the incident, it was held that Clause 3rdly of Section 300 Indian Penal Code had not been established beyond reasonable doubt in the case, and the conviction under Section 302/ Indian Penal Code was altered to Section 304 Part II Indian Penal Code. But such are not the facts of the case on hand.85. Mr. Dhankhar has relied on the case of Randhir Singh v.State of Punjab (AIR 1982 SC, wherein only one injury was caused to the victim by the accused, who was a young college going boy and the weapon of offence was not carried by the accused in advance. There-was some altercation whether the deceased and father of the accused and there was no premeditation. There-was some altercation whether the deceased and father of the accused and there was no premeditation. The death of the deceased-had also occurred after six days. Keeping in view the totality of the circumstances of that case, it was observed that one can only say that the accused must be attributed knowledge that he was likely to cause injuries, which were likely to cause death and that it cannot be said that the accused intended to cause that particular injury. In such circumstances, the conviction of the accused was altered from Section 302 to Section 304 Part II, Indian Penal Code. Apparently such are not the facts of the case on hand and therefore, the facts of Randhir Singh's case have no application to the present case.86. Another case cited on behalf of the appellant is that of Duli v. State (1991 All. LJ 490) wherein the words used by the accused clearly indicated that intention was not to commit murder and no motive was shown and the whole incident took place in a sudden development where the accused acting on spur of moment without premeditation used sharp weapon and caused fatal injuries to the victim. I t was held that it could be inferred that the accused persons had the knowledge that their act was likely to cause death and their conviction was altered from Section 302 Indian Penal Code to Section 304 Part II, Indian Penal Code. The facts of this case are clearly distinguishable with the facts of the case on hand.87. Next case cited by Mr. Dhankhar is Mathew v. State of Kerala ( AIR 1991 SC 1376 ) wherein there was estranged relations between the accused (victim's son-in-law) and the victim. The accused was provoked by the removal of his child by his wife to the victim's i.e. his father-in- law's place, which resulted in quarrel between the accused and his father-in-law and scuffle ensued wherein stab wounds were inflicted. The Trial Court held that the case fell within Clause 3rdly of Section 300 Indian Penal Code and convicted the accused under Section 304 Part II, Indian Penal Code. The High Court on reappreciation of the evidence convicted the accused for offence under Section 302, [PC. The Trial Court held that the case fell within Clause 3rdly of Section 300 Indian Penal Code and convicted the accused under Section 304 Part II, Indian Penal Code. The High Court on reappreciation of the evidence convicted the accused for offence under Section 302, [PC. The Apex Court set aside the finding soft he High Court and restored the judgment and sentence passed by the Trial Court convicting the appellant under Section 304 Part II, Indian Penal Code. Again, the facts of this case are at polls apart with the facts of the case on hand.88. The next case cited by Mr. Dhankhar is Nadodi Jayararn v. State of T.N. (1992 (3) SCC wherein all the accused including appellant armed with iron rods and pipes caused injuries to the deceased due to trade, rivalry, and out of injuries suffered by the deceased, only head injury was found to be sufficient in the ordinary course of nature to cause death. The remaining injuries were simple in nature and caused on non- vital parts of the body. The exact nature of the injuries caused by the appellant was not known. There was no further assault made after the deceased had fallen down. It was held that on the facts the appellant had no intention to cause death or to cause such bodily injury as was likely to cause death or to cause such bodily injury as was likely to cause death. It was further held that the appellants committed culpable homicide not amounting to murder and they were convicted under Section 304 Part II, Indian Penal Code instead of Section 34 [PC. Again, the facts of the cited case are clearly distinguishable.89. Another case relied by Mr. Dhankhar is that of Nathu v. State of Rajasthan (1986 Cr.L.J 413 . where in heat of passion, in a sudden fight without any premeditation the accused inflicted knife blows to the victim without any intention to cause such injury as would be sufficient in the ordinary course of nature to cause death. It was held that the case was covered by Exception (4) to Section 300 Indian Penal Code and the accused was liable to be convicted under Section 304 Part II, Indian Penal Code and not for the offence under Section 302 Indian Penal Code. It was held that the case was covered by Exception (4) to Section 300 Indian Penal Code and the accused was liable to be convicted under Section 304 Part II, Indian Penal Code and not for the offence under Section 302 Indian Penal Code. In that case, appellant Nathu and the deceased were real brothers and both of them were fighting with each other. They came to the "pol" where the deceased fell down on the ground and thereupon the appellant inflicted knife blows to him resulting in his death. The quarrel took place on a petty matter regarding an underwear. It is needless to mention that the facts of the cited case are clearly distinguishable.90. In Narayanan v. State of Kerala (AIR SC 2308) , the accused inflicted only one stab wound on the deceased on his vital part but the facts established in that case viz., that the accused did not act under any sudden impulse but pursued the deceased after arming himself with a dagger, which is a dangerous weapon in execution of a pre-meditated plan motivated by ill-feelings nurtured for a number of days and inflicted a severe stab injury on the vital region of the body of the deceased, which perforated not only his left lung but also penetrated into and impaired the left ventrical of his heart, which t dearly show that the accused had the intention of causing the death of the deceased and pursuant there to acted in a manner which brings his offence within the mischief of Section 302 Indian Penal Code. In that case, the prosecution did not examine the doctor, who performed operation. It was held that it was not sufficient to downgrade the enormity of the offence committed by the accused and that it cannot be over looked that the doctor who conducted autopsy had categorically stated that the stab injury was sufficient in the ordinary course of nature to cause the death of the deceased and the cause of death was bleeding and shock following the said injury. Thus, the offence clearly fell within the Clause 3rdly of Section 300, Indian Penal Code. Thus, the offence clearly fell within the Clause 3rdly of Section 300, Indian Penal Code. In our considered opinion, in the instant case, the act of appellant Birbal in repeatedly inflicting at least four knife blows on the chest, abdomen and wrist of deceased Gajanand, who was unarmed, clearly manifests that the appellant had caused those injuries with the intention of causing death, which he knew that those were likely to cause death and that those deadly injuries were intended to be inflicted on vital parts of the deceased, which were sufficient in the ordinary course of nature to cause death. Therefore, the act of appellant Birbal falls within Clause 3rdly as also under Clause 2ndly of Section 300 Indian Penal Code. The appellant had gone to the examination record room duly armed with knife-Art. 1. The Incident did not take place in a sudden fight under the heat of passion upon a sudden quarrel and without the offender taken undue advantage or acted in a cruel or unusual manner. There was no mutual combat on exchange of blows between t e deceased and the appellant. On the other hand, the appellant inflicted repeated knife blows on vital parts of the deceased. Thus, we are not convinced with the contention of Mr. Dhankhar that the act of appellant Birbal falls within Exception 4 to Section 3(X), Indian Penal Code.91. In Kikar Singh v. State of Rajasthan ( AIR 1993 SC 2426 =11(1993) CCR 164 (SC) , it has been held that for the application of Exception (4) to Section 300 Indian Penal Code all of the conditions enumerated therein must be satisfied. The act must be committed without pre-meditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; and (4) the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other and however, slight the fist blow, or provocation, every fist blow becomes a fresh provocation. The strike of the blow must be without any intention to kill or seriously injure the other. Therefore, there must be a mutual combat or exchanging blows on each other and however, slight the fist blow, or provocation, every fist blow becomes a fresh provocation. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken undue advantage denying him the entitlement to Exception (4) of Section Indian Penal Code. The Apex Court upheld the conviction and sentence of the accused for offence under Section Indian Penal Code.92. In Babubhai Ranchodbhai Patel v. State of Gujarat(AIR 1994SC 1400=IV (1993)CCR473 (SC) , from the prosecution evidence, it was established that beyond reasonable doubt that the accused had inflicted injuries on the spleen region of the deceased, which proved fatal. The description of the injuries showed that the same was inflicted with force by a knife. The injury passed through peritoneum and penetrating through the interior surface of the right lobe of liver. It was held that there could not be any doubt that the accused intended to inflict that injury, which was sufficient in the ordinary course of nature to cause death and that even if there was sudden quarrel, that could not he a ground to hold that the accused had only the knowledge. The intention for the purpose of Clause 3rdly of Section 300,1PC has to be inferred from the facts and circumstances in each case. The Apex Court observed that one can understand if there had been grappling or struggle between accused and the deceased an in the course of which if he came to inflict an injury perhaps a doubt may arise whether he aimed and intended to cause that particular injury during that grappling or struggle. But in the cited case, the evidence was that the accused straight went and attacked the deceased with a knife inflicting such a serious injury and not only that he also inflicted injuries on two witnesses with the weapon. The Apex Court, therefore, held that the facts and circumstances of the case would attract Clause duly of Section 300 Indian Penal Code and offence made out was under Section 302 Indian Penal Code. Similar are the facts of the case on hand.93. The Apex Court, therefore, held that the facts and circumstances of the case would attract Clause duly of Section 300 Indian Penal Code and offence made out was under Section 302 Indian Penal Code. Similar are the facts of the case on hand.93. In the instant case, deceased Gajanand was unarmed while the appellant having a knife went to the School and thereafter to the examination record room and that he repeatedly inflicted knife blows on the chest and abdomen of Gajanand against whom he nurtured a grudge regarding his transfer from Government Secondary School, Guahala to the School of Rosawa. There was no combat or grappling bEtween the appellant and the deceased. In such circumstances, it cannot be said that the act of the appellant was committed without pre-meditation in the heat of passion upon a sudden quarrel and that the appellant had not taken undue advantage or acted in a level or unusual manner. Therefore, in such circumstances, the act of the accused- appellant does not fall within Exception (41 of Section 300 Indian Penal Code. On the other hand, his act falls within Clause 3rdly as also under Clause 2ndly of Section 300 Indian Penal Code, which is punishable under Section 302 Indian Penal Code.94. The conduct of the appellant after the incident in going to PW 22 Dr. Bhagwan Das requesting him to get him admitted in Government Hospital, Gudha.and procuring a medical certificate Ex.P 20 also reflects about his guilty intention, by which he attempted to create evidence for alibi.95. No other point was pressed before us.96. The upshot of the above discussion is that this appeal fails and is hereby dismissed. The conviction and sentence of appellant Birbal are maintained. The appellant is in jail and he be informed accordingly.Appeal dismissed. *******