Judgment N. I. TIBREWAL, J. ( 1 ) BOTH these appeals are directed against the judgment and order dated December 19, 1995, convicting the appellants of the offences sections 302 and 302/34, I. P. C. and Sentencing them to imprisonment for and a fine of Rs. 100/-, each. We propose to dispose of both these appeals his common order. ( 2 ) THE prosecution case in brief is on October 20, 1988 at about 8. 00 the deceased Shyam Lal was sitting in his house alongwith his father PW 11 Narayan, his mother PW 2 Chunni Bai, his brother PW 3 Dalu Ram and the daughter of his sister. It is alleged that both the appellants came to the house of the deceased and started hurling filthy abuses. It is further alleged that PW 3 Dal chand came out of his house and scolded them for burling filthy abuses as there were ladies inside the house. The prosecution case further is that at that time the two appellants retired but they again came back and called PW 3 Dal Chand but Dal Chand did not come out of the house as he was taking meal with other members of the family and it was the deceased Shyam. Lal, who came out of the house. It is further alleged that as soon as Shyam Lal came out of the house Lal Chand, appellant, opened an assault upon him with a knife/sword (Churi) and caused him several injuries. Shyam Lal, deceased, raised an alarm which attracted the other members of the family from inside of the police and possibly; some neighbours also but the two appellants ran away from the place of occurrence. ( 3 ) SHYAM Lal, injured, was immediately removed to the hospital at Ram Ganj Mandi where PW 8 Dr. Surendra Mohan Mathur examined him and gave him first aid. Dr. Mathur noticed the following injuries on his person: Dr. Mathur advised-ray examination of injury Nos. 1 to 3 and referred injured to the MBS Hospital (i) Incised wound 1. 1/2 x 1/2 x 2 cm. Left intrascapular region. (ii) Incised wound 2 x 1/2 x 1. 1/2 cm. Left renal region. (iii) Incised wound 1 x 1/4 x 1/2 cm. Right renal region. (iv) Incised wound 2 x 1/4 x 1/2 cm. Left forearm ext. aspect. (v) Incised wound 2. 1/2 x 1/4 x 1/4 cm. 1/2 x 1/2 x 2 cm. Left intrascapular region. (ii) Incised wound 2 x 1/2 x 1. 1/2 cm. Left renal region. (iii) Incised wound 1 x 1/4 x 1/2 cm. Right renal region. (iv) Incised wound 2 x 1/4 x 1/2 cm. Left forearm ext. aspect. (v) Incised wound 2. 1/2 x 1/4 x 1/4 cm. Right hand palmer surface. (vi) Incised wound 2 x 1/4 x 1/2 cm. Right hand forearm front. Kota. The injured was then taken to the Kota Hospital where he was admitted but he expired in the very night. The autopsy on his dead body was conducted by PW 20 Dr. C. M. Srivastava. Dr. Srivastava observed stitched wound on his left forearm anterior aspect, on palmer surface right hand on right renal angle and left Renal angle. On opening the body of the deceased Dr. Srivastava noted that the left and right Kidneys of the deceased had been cut. He accordingly opined that the death had resulted due to shock resulting from injuries to both the kidneys. In the Court Dr. Srivastava has further opined that the injuries sustained by the deceased were in the ordinary course of nature sufficient to cause death. ( 4 ) THE FIR of the incident was lodged at 8. 45 p. m. on the same night of the incident by PW 1 Narain the father of the deceased. It may be also mentioned here that when the deceased had been brought to the hospital at Ram Ganj Mandi his statement had been recorded by the police officer in the presence of Dr. Surendra Mohan Mathur, PW 8 which has been proved as Ex. P-7 in the case. A further statement of the deceased was also recorded by PW 18 Sh. Brijlal Meena. Judicial Magistrate, under the orders of the Chief Judicial Magistrate That statement has also been proved as Ex. P-14. ( 5 ) AFTER usual investigation the police charge-sheeted both the appellants for having committed the offence u/sections 302, 302 r/w Section 34, I. P. C. ( 6 ) AT the trial the prosecution examined as many as 21 witnesses to prove their case. Neither of the two appellants took any specific plea in their defence. They pleaded denial simplicitor and further stated that they had been falsely implicated in the present case due to enmity. No. evidence in the defence, however, was produced. Neither of the two appellants took any specific plea in their defence. They pleaded denial simplicitor and further stated that they had been falsely implicated in the present case due to enmity. No. evidence in the defence, however, was produced. The learned trial Judge recorded the finding that Shyam Lal deceased, had died a homicidal death and a fatal injury had been caused to him by Lal Chand appellant. He further observed that Sanjay, appellant shared the common intention with Lal Chand for causing the death of the deceased. He accordingly convicted Lal Chand appellant u/ s. 302 and Sanjay appellant u/s. 302 nw 34, I. P. C. and sentenced both of them to imprisonment for life fine of Rs. 100/- each as stated above. ( 7 ) MR. Arvind Bhardwaj the learned Counsel appearing for Lal Chand appellant took us through the entire evidence on the record of the case and tried to pursuade us to agree with him that there was no convincing and satisfactory evidence on the record of the case to hold Lal Chand, appellant as the author of the injuries to the deceased. The learned Counsel, in main pointed out that in the present case as many as 6 or 7 persons were examined as eye witnesses but save the witnesses belonging to the family of the deceased none supported the prosecution case. The learned Counsel further submitted that PW 1 Narain. PW 2 Chunni Bai and PW 3 Dalu Ram, at the relevant time were inside the house and they could not have witnesses Lal Chand appellant, causing injuries to the deceased. It was further submitted that P. W. 6 Jatan Bai and P. W. 7 Lila Bai were not named in the F. I. R. and therefore, they could not have been relied upon as eye-witnesses. It was further submitted that certain witnessed from the same locality, namely PW 5 Kailash. PW 14 Lal Chand and PW 15 Jagannath did not support the prosecution case and turned hostile. It was thus submitted that the evidence produced by the prosecution, was highly interested and therefore should not have been believed - by the learned trial Judge. It was further submitted that certain witnessed from the same locality, namely PW 5 Kailash. PW 14 Lal Chand and PW 15 Jagannath did not support the prosecution case and turned hostile. It was thus submitted that the evidence produced by the prosecution, was highly interested and therefore should not have been believed - by the learned trial Judge. ( 8 ) ON going through the statement of the aforesaid witnesses, we find that Kailash P. W. 5 PW 14 Lai Chand and Jagannath PW 15 were not named in the FIR which was lead by none else but by the father of the deceased himself and who was present to the house at he relevant time. None of the three witnesses have supported the prosecution case and on gourd through the cross-examination, conducted upon them on behalf of the prosecution, we find nothing which could support of the prosecution case. ( 9 ) INSOFAR as PW 6 Jatan Bai and PW 7 Lila Bai are concerned, we find that they too have also not been named as eye witnesses in the case. In normal course when the information of the incident was none else but the father of the deceased, he would have mentioned the names of these ladies, had they been the in house at the relevant time. Both these witnesses are married women. They stated that they had reached Naraints house (who was the father of PW 6 Jatan Bai and maternal grand father of PW 7. Lila Bal) on that evening from their in-lawss house. Their presence in Naraints house is doubtful. We would, therefore, not attach any value to the statements of these two ladies, who are obviously in interested witnesses in the present case. ( 10 ) INSOFAR ands the testimony of PW 1 Narain, the informant father of the deceased PW 2 Chunni Bai, the mother of the deceased and PW 3 Dalu Ram, the brother of the deceased, is concerned we find that they have supported the prosecution case. It was occasioned that the incident had taken place on Dashehra festival and these witnesses would have naturally been present in their house. However, the prosecution case is that the two appellants had reached the house of the deceased at about 8. It was occasioned that the incident had taken place on Dashehra festival and these witnesses would have naturally been present in their house. However, the prosecution case is that the two appellants had reached the house of the deceased at about 8. 00 p. m. in the first instance and had started hurling filthy abuses where upon PW 3 Dalu Ram had come out of the house and scolded them for hurling filthy abuses. The prosecution case further is that at that time the two appellants had retired but they had again come back and called PW 3 Dalu Ram but Dalu Ram did not come out of the house instead it was Shymal Lal, deceased who went out of the house. It is the further case of the prosecution that the two appellants had opened an attack upon Shyam Lal, deceased, as soon as he had come out of the house and it were on the cries or alarm, raised by Shyam Lal, deceased after having sustained injuries, which had attracted the three witnesses to the spot. The manner in which the incident had taken place clearly suggests that the three witnesses could not have reached the place of occurrence prior to the infliction of injuries by the assailants on Shyam Lal, deceased. The assailants would in normal course took to their heels. The statement of these three witnesses can, therefore be accepted to the extent that at the first occasion certain abuses were hurled by Lal Chand, appellant where upon PW 3 Dal Chand, had gone out of the house and rebuked Lal Chand, appellant. Their testimony may further be accepted to the extent that Lal Chand, appellant, who is said to have called Dalu Ram by name and asked him to come out of the house, had reached again after some interval whereupon the deceased had gone out of the house and thereafter the incident had taken place. These three witnesses cannot be accepted as eye-witnesses to the actual infliction of injuries by either of the two appellants on the person of Shyam Lal, deceased. ( 11 ) THE other evidence relied upon by the prosecution consisted of the two dying declarations, one recorded by the police officer on 20-10-1988 in the hospital at Ram Ganj Mandi and the other by a Magistrate on 21-10- 1988 at the hospital at Kota. Mr. ( 11 ) THE other evidence relied upon by the prosecution consisted of the two dying declarations, one recorded by the police officer on 20-10-1988 in the hospital at Ram Ganj Mandi and the other by a Magistrate on 21-10- 1988 at the hospital at Kota. Mr. Bhardwaj submitted that neither of these two dying declarations can be relied upon for basing the conviction of either of the appellants for offence u/s 302, I. P. C. for the obvious reason that the first dying declaration Ex. P-7 was not proved by the police officers who wrote it and by the time the second dying declaration Ex. P-14 was recorded by PW 18 S11. . Brijlal Meena. Judicial Magistrate, the deceased had opportunity to improve over his first statement, recorded by the police officer at the hospital at Ram Ganj Mandi and the possibility of his having been tutored by other interested persons could also not be ruled out. Another attack levelled by Mr. Bhardwaj against the dying declaration Ex. P-14, recorded by the Magistrate, was that the same had not been recorded in the form of questions and answers. In this behalf Mr. Bharadwaj placed reliance upon the Supreme Court decision in the case of State (Delhi Administration) v. Laxman Kumar and Ors:. ( 12 ) WE have given our thoughtful consideration to the arguments advanced by Mr; Bhardwaj. In the facts and circumstances of the case we find it difficult to accept his submission on this point. ( 13 ) IT is well settled in law that the conviction of an accused may be based solely on a dying declaration provided that such declaration is voluntary and truthful. Its trustworthiness may be examined in the light of the facts and 1. A. I. R. 1986 S. C. 250. circumstances, naturally attending upon the commission of the offence and therefore, it is not necessary that some direct evidence should be brought on record to corroborate such dying declaration. ( 14 ) IN the present case we find that Shyam Lal, deceased had first been taken to the Ram Ganj Mandi Hospital where his statement Ex. P-7 was recorded at 10. 45 p. m. by a police officer. This statement was recorded obviously u/s 161, Cri. P. C. as the case had already been registered at the information, lodged by his father PW 1 Narain. The statement, recorded u/s 161, Cr. P-7 was recorded at 10. 45 p. m. by a police officer. This statement was recorded obviously u/s 161, Cri. P. C. as the case had already been registered at the information, lodged by his father PW 1 Narain. The statement, recorded u/s 161, Cr. P. C. becomes a dying declaration after the death of the deponent if such statement relates to the circumstances leading to the cause of the death of the deponent. PW 8 Dr. S. M. Mathur has stated that when the statement of the deceased was recorded he was fully conscious and in a fit condition to make a statement. That fact has also been mentioned by the witness at the bottom of his report Ex. P6. We, therefore, have no doubt in our mind that when the first statement of the deceased, Ex. P-7 was recorded in the hospital at Ram Ganj Mandi, he was not only conscious but was also in a fit condition to make a statement. The statement contains the statement, of the Doctor himself testifying that the patient was in a fit condition to make statement and that the statement was recorded in his presence. It may be noted that in his statement, Ex. P-7. the deceased had stated all the material particulars of the incident, including the fact of the infliction of the injuries on his person with a sharpedged weapon by Lal Chand, appellant. It may further be noted that in the end of statement the deceased had made reference to the incident which had taken place earlier to the unfortunate incident in which he sustained injuries. However in this statement Shyam Lal deceased had made no reference to any act done or played by Sanjay appellant. He has not even mentioned the named of Sanjay appellant as the person who had accompanied Lal Chand appellant at the first occasion. There are no reason to assumet that this statement was not voluntary or had been manufactured by the police officer for oblique motives. Such an assumption is ruled out in the sequence of events. that had rapidly been taken place in the present case. This statement obviously inspires confidence is truthful and if we may say so gets corroboration from the statements of PW 1 Narain. Such an assumption is ruled out in the sequence of events. that had rapidly been taken place in the present case. This statement obviously inspires confidence is truthful and if we may say so gets corroboration from the statements of PW 1 Narain. PW 2 Chunni Bai and PW 3 Dal Chand insofar as the happening of the two incidents on the relevant day time and place are concerned. The injuries found on the persons of the deceased also corroborate it. ( 15 ) IT is true that the police officer, who wrote Ex. P-7 viz. PW 12 Ram Singh has not specifically spoken of recording of this statement. That is certainly a dereliction of the duty on the part of the prosecution as well as the Court. Here we may point out that the prosecution has moved an application u/s 319. Cr. P. C. before us for recalling Ram Singh PW 12. so that the said statement Ex. P-7 may be formally got proved from the witness. Since we are satisfied with the evidence of Dr. Mathur PW 8 that the statement had been recorded by a police officer in his presence when the injured was in a fit condition to make statement and also that there is another statement Ex. P-14 which is to be treated as dying declaration of the deceased, we do not think that at this belated stage we should accept the prayer of the prosecution to recall Ram Singh. PW 12. We are also satisfied that the statement of the deceased Ex. P-7 stands fully proved by the statement of Dr. S. M. Mathur. PW 8. ( 16 ) NOW coming to another dying declaration of the deceased prove as Ex. P-14. we find that this statement had been recorded by Sh. Brij Lal Meena PW 18. Judicial Magistrate. in the M. B. S. Hospital. Kota at the relevant time. Sh. Brij Lal Meena Judicial Magistrate has proved this statement. No objection against the proof of this statement was raised before us save that there was a time gap in recording this dying declaration between the infliction of the injuries to the, deceased and his death. On going through this dying declaration we note that herein the deceased had named Sanjay appellant as having a lathi with him. No objection against the proof of this statement was raised before us save that there was a time gap in recording this dying declaration between the infliction of the injuries to the, deceased and his death. On going through this dying declaration we note that herein the deceased had named Sanjay appellant as having a lathi with him. But he has attributed no other overt act to him Sanjay appellant had though been named as the other person accompanying Lal Chand appellant in the earlier statement recorded on 20-10-1988 in the hospital at Ram Ganj Mandi Ex. P-7. but there this appellant was not stated to be armed with a lathi. This appears to be an improvement over the statement Ex. P-7. But in so far as other particulars of the incident are concerned the maker of the statement has given the same statement as given by him in his earlier statement Ex. P-7. From the mere improvement regarding a stick in the hand of Sanjay appellant the voluntary character of this dying declaration cannot be demolished. It contains to our mind a truthful version of the incident speaks of all material details of the circumstances leading to the causing of the injuries to the person of the deceased and, had been voluntarily made. The statement is consistent insofar as it relates to the causing of the injuries to the deceased by Lal Chand appellant. ( 17 ) WE have carefully examined the statement of Mr. Brij Lal Meena. PW 18 and find nothing to disbelieve the same. We, therefore hold that Ex. P-14 also is a voluntary statement made by the deceased and that it contains his truthful version insofar as the act of Lal Chand appellant is concerned. ( 18 ) IT was not disputed before us that Shyam Lal, deceased had died a homicidal death. He had sustained five injuries with sharpedged weapon at vital parts of his body namely on both the kidneys and. despite medical help given to him he had succumbed to such injuries in the very night. His death was; therefore the direct consequents of the injuries sustained by him. Those injuries had been as found by us above intentionally caused to him by Lal Chand appellant with a sharpedged weapon. ( 19 ) NOW the question arises as to what offence was committed in the death of Shyam Lal, deceased. Mr. His death was; therefore the direct consequents of the injuries sustained by him. Those injuries had been as found by us above intentionally caused to him by Lal Chand appellant with a sharpedged weapon. ( 19 ) NOW the question arises as to what offence was committed in the death of Shyam Lal, deceased. Mr. Bhardwaj pointed out that PW 8 Dr. S. M. Mathur had opined that the injuries found on the person of the deceased, were not in the ordinary course of the nature sufficient to cause death. We find that the opinion expressed by Dr. Mathur is self-contradictory inasmuch as that in the first sentence he had stated that he was not in a position to opine as to whether the injuries sustained by the deceased were sufficient to cause death in the ordinary course of nature but then witness had stated that in his individual opinion those injuries were sufficient to cause death in the ordinary course of nature. The witness had been called to give his individual opinion and not to give another opinion. Moreover he had only given the first aid to the patient on external examination of the injuries only without trying to probe and not considering the consequences likely to follow from such injuries. As against it. Dr. Srivastava. PW 20, has clearly opined that the injuries caused to Shyam Lal, deceased on both of his kidneys were in the ordinary course of nature sufficient to cause death. Dr. Srivastava had conducted the postmortem examination on the dead body of the deceased and was in a better position to know the nature and the probable consequences of the two injuries on the kidneys. On the facts found by Dr. Mathur PW 8 and, as also endorsed by Dr. Srivastava PW 20, we are satisfied that the opinion of Dr. Srivastava is acceptable and is hereby accepted. ( 20 ) THE question arises as to what offence can be said to have been committed in the death of Shyam Lal. deceased. To recall the prosecution case is that the appellants are stated to have visited the house of the prosecution witnesses twice. In the first instance they had retired after PW 3 Dalu Ram had scolded them for their hurling filthy abuses in the Mohallah. Thereafter both the appellants are stated to have again reached the house of the prosecution witnesses. To recall the prosecution case is that the appellants are stated to have visited the house of the prosecution witnesses twice. In the first instance they had retired after PW 3 Dalu Ram had scolded them for their hurling filthy abuses in the Mohallah. Thereafter both the appellants are stated to have again reached the house of the prosecution witnesses. This time Lal Chand appellant was armed with a sharpedged weapon. On reaching the house of the prosecution witnesses he had given a call to PW 3 Dalu Ram, but Shyam Lal, deceased had come out of the house and was then assaulted. Here it may be pointed out that it is well in evidence that Lal Chand, appellant had been having an affair with Kum. Prem, who happened to be the sisterts daughter of the deceased. He further appears to have been proceeded against by the prosecution for having abducted or kidnapped Kum. Prem. The appellant is, therefore, found to be having a motive also to commit the offence. In view of the nature of the injuries and the manner in which the incident had taken place, it is riot difficult to infer that though Lal Chand, appellant might not be having the intention to cause death of Shyam Lal, deceased but he was having knowledge of the likely consequences, resulting from the acts of intentionally causing repeatedly injuries with a sharpedged weapon on the vital part of the body of the deceased. Injuries on the palm and forearm of the deceased suggest that the had tried to save him but the assailant continued his assault on him even when the deceased might have turned his back towards him, perhaps to run away in order to sere his life Lal Chand, appellant, had intentionally caused such bodily injuries to Shyam Lal, deceased as he knew to be likely to cause his death. Moreover the injuries caused by Lal Chand to the deceased were sufficient in the ordinary course of nature to cause death. The case against Lal Chand, appellant thus squarely falls under Clause 2ndly, as well as 3rdly, to Section 300, I. P. C. without attracting any act of the excepting clause thereunder. Moreover the injuries caused by Lal Chand to the deceased were sufficient in the ordinary course of nature to cause death. The case against Lal Chand, appellant thus squarely falls under Clause 2ndly, as well as 3rdly, to Section 300, I. P. C. without attracting any act of the excepting clause thereunder. He has rightly, been found guilty of the offence u/s Section 302, I. P. C. ( 21 ) INSOFAR as the case against Sanjay, appellant is concerned we have observed above that there is a variance regarding the fact of his having a weapon at the time of commission of the alleged offence. Here we may point out that in the first incident this appellant is not stated to have played any role. In the fact in Ex. P-7 he is not stated to have even accompanied Lal Chand, appellant to the house of the deceased. Even if it be assumed that he had accompanied Lal Chand, appellant, in the first incident, then it is gathered from the evidence that at the most the two appellants could have shared the common intention to cause bodily injuries to Dal Chand PW 3, who had scolded them for hurling filthy abuses in the Mohalla. But as noted above, he was not having lathi in his hand, as mentioned in Ex. P. 7. In case it is accepted that he was having a lathi, as has been recorded in the second statement of the deceased, proved as Ex. P-14, then certainly he is not attributed any act of trying to assault the deceased. Here it may be pointed out that if this appellant, had been having a common intention with Lal Chand, appellant to cause ,hurt simple or grievous to Shyam Lal, deceased such intention was against Dal Chand, PW 3, who had scolded them. On seeing Shyam Lal, deceased coming out of his house, this appellant had not played any active role in his effort to manifest his common intention. It may then be successfully argued that on seeing Shyam Lal, deceased coming out of the house thist appellant had absented himself mentally from causing any injury to the deceased as in his mind he could have grievance against Dal Chand only. That being so, we would like to extend benefit of doubt to this accused. It may then be successfully argued that on seeing Shyam Lal, deceased coming out of the house thist appellant had absented himself mentally from causing any injury to the deceased as in his mind he could have grievance against Dal Chand only. That being so, we would like to extend benefit of doubt to this accused. ( 22 ) IN the final analysis the appeal of Lal Chand, appellant fails and is hereby dismissed. The appeal, preferred by Sanjay appellant is hereby allowed. His conviction and sentence, as recorded for the offence u/s 302/34, I. P. C. are hereby set aside. He is on bail, he need not to surrender as his bail bonds are cancelled. Appeal of 1st Appellant dismissed and Appeal of 2nd Appellant allowed. .