JUDGMENT - VISHNU SAHAI, J.:---Through this appeal, the appellants challenged the judgment and order dated 19-3-1997 passed by the IInd Additional Sessions Judge, Thane, in Sessions Case No. 164 of 1995 whereby they have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- each in default to suffer three months R.I. for the offence under section 302 read with 34 I.P.C. 2. Shortly stated the prosecution case as mainly emerging from the recitals contained in the F.I.R. lodged by the deceased Ramnarayan Singh is as under :--- The appellant-Prayag Sinha Bharat Sinha is the father-in-law of the appellants-Vedprakashsinha Birendra Kumar Sinha and Ashok Kumar Upendrakumar Sinha. The three appellants at some places in the record of the trial Court instead of Sinha have been also mentioned as Singh. At the time of the incident they were residing at Dennis compound, Prayag Sinha chawl in Karvalo Nagar in District Thane. At that time, the deceased Ramnarayan Singh also referred to as Ramnarayan Sinha at some places in the record of the trial Court and the three eye-witnesses namely Kusum Ramnarayan Singh P.W. 1, Lalidevi Ramnarayan Singh P.W. 2 and Anil Kumar Singh P.W. 4, the daughter, wife and nephew respectively of the deceased Ramnarayan Singh and Dinesh Kumar Singh P.W. 3 also lived there. Prior to the incident, the deceased Ramnarayan Singh and his uncle the appellant Prayag Sinha were running a dairy farm in partnership at Devidayal Park. There was a dispute between them from four years prior to the incident over the ownership of the said diary farm. There was also a dispute between them over the chawl wherein Ramnarayan Sinha was residing. Prior to the incident, Ramnarayan Sinha had filed a civil suit against the appellant Prayag Sinha which at the time of the incident was pending. On 5-12-1994, at 2.25 p.m. Ramnarayan Sinha had left his house for Kores Company where he was working on printing machine from 1977. At 3 p.m. Anilkumar Sinha P.W. 4 came to take food at his house. At that time, the appellant-Prayag Singh came and broke the lock of Ramnarayan Sinha's room. On 5-12-1994, at 2.25 p.m. Ramnarayan Sinha had left his house for Kores Company where he was working on printing machine from 1977. At 3 p.m. Anilkumar Sinha P.W. 4 came to take food at his house. At that time, the appellant-Prayag Singh came and broke the lock of Ramnarayan Sinha's room. Consequently, Anil Kumar Singh forthwith went to the factory where Ramnarayan Singh was employed and brought him to his room at 3.15 p.m. At 3.30 p.m. while Ramnarayan Singh was sitting in front of Jagnarayan Pandey's room, he asked the appellants Vedprakash Singh and Ashok Kumar Singh who were the sons-in-law of his uncle, the appellant Prayag Singh as to why they had broken the lock of his room. Thereupon, the three appellants abused him. The appellant Vedprakash with a spear and the appellant Ashok Kumar Singh with a knife started assaulting him resulting in his sustaining injuries on various parts of his body and intestines protruding out. After assaulting Ramnarayan Sinha, the appellants are said to have run away. It is alleged that this incident was seen by Kusum Singh P.W. 1 Lalidevi Singh P.W. 2 and Anil Kumar Singh P.W. 4. When Lalidevi Singh tried to rescue the deceased, she received injuries on her left hand. 3. The evidence of Dinesh Sinha P.W. 3 shows that when on 5-12-1994 at 3 p.m. he came to take lunch at his house, people were shouting. He noticed that Ramnarayan Singh was lying on a cot in a injured condition. Consequently he, Anil Kumar Sinha P.W. 4 and Jagnarayan Pandey (not examined) took Ramnarayan Sinha in a rickshaw to Civil Hospital, Thane. 3-A. The evidence of Dr. Dilip Vaze P.W. 13 shows that on 5-12-1994 at 4.15 p.m. he was working as Chief Medical Officer, Civil Hospital, Thane. At that time, Ramnarayan Singh came to be admitted at Male Surgical ward. 4. The evidence of P.S.O. Ramchandra Shinde P.W. 5 shows that on 5-12-1994 at 3.45 p.m. while he was working as P.S.O. at Vartak Nagar Police Station, a person who did not disclose his name telephoned him that there was a quarrel at Karwalo Nagar and the injured had been admitted to Civil Hospital. Consequently, he made an entry in his station diary and rushed to Civil Hospital, Thane. His evidence and that of Dr. Consequently, he made an entry in his station diary and rushed to Civil Hospital, Thane. His evidence and that of Dr. Vaze P.W. 13 shows that he enquired from the latter whether the injured was in a condition to speak and when the latter (Dr. Vaze) examined the injured and made the endorsement in the letter produced by P.S.O. Shinde that the injured was conscious and mentally fit to make a statement P.S.O. Shinde recorded the statement of the injured (Ramnarayan Sinha). The evidence of Dr. Vaze shows that when the statement of Ramnarayan Sinha was recorded by P.S.O. Shinde, he was conscious and he gave an endorsement to the said effect after the statement had been recorded. The said statement has been recorded in Marathi by P.S.O. Shinde. Since Ramnarayan Singh died after making it and it is a dying declaration and a vital piece of evidence on which the conviction of the appellant is founded, we are extracting its English translation in entirety :--- "I, Ramnarayan Singh Kharban Sinha aged 42 years, occupation; Service, resident of Karwalo nagar, Prayag Sinha chawl, Dennis compound, Thane. I today while being admitted at Civil Hospital, Thane for treatment on enquiry I state as under :--- I have been staying at the above place along with my wife Laxmidevi and my four children since last 22 years. I work in Kores Company from 1977 on a printing machine. Prayag Sinha Bharti Sinha resident of Karwalo nagar, Prayag Sinha chawl, Dennis compound is my uncle. We are running a dairy farm in partnership at Devidayal Park. There is a dispute between myself and my uncle since four years over the ownership of the dairy farm. There is also a dispute between us over the chawl where we are residing. I have filed a civil suit in Thane against Prayag Sinha which is pending. Today being my second shift, I left my house at 2.25 p.m. and went to the company. My nephew Anil Kumar Sinha came to call me at the house. I came back to my house. At 3.30 p.m. I was sitting in front of Prayag Sinha's room. At that time, I asked my uncle's sons-in-law Vedprakash Sinha and Ashok Kumar Sinha as to why they had broken the lock of my room. On that my uncle and his sons-in-law abused me. I came back to my house. At 3.30 p.m. I was sitting in front of Prayag Sinha's room. At that time, I asked my uncle's sons-in-law Vedprakash Sinha and Ashok Kumar Sinha as to why they had broken the lock of my room. On that my uncle and his sons-in-law abused me. Vedprakash Sinha with a spear and Ashok Kumar Sinha with a knife started assaulting me. I am bleeding from the injuries which I have sustained, on my nose, right upper arm, left hand thumb, stomach, right side below neck, on the left thigh at two places and on right thigh. My intestines have protruded out. Therefore, today when I was sitting in front of Pandey's room in my chawl at 3.30 p.m. my uncle and his above mentioned sons-in-law abused me and both the sons-in-law have caused the injuries with a spear and knife on account of the dispute over property and have tried to commit my murder. Therefore, I have a legal complaint against them. This incident has been witnessed by Pandey and his son. The statement has been read over to me and is as per my narration". It is pertinent to mention that on the said statement, there is an endorsement by Dr. Vaze (5-12-1994 at 4.25 p.m.) that the patient was conscious and in a condition to give the statement. After recording the statement, Ramnarayan Sinha signed it. It is pertinent to mention that the evidence of Dr. Vaze shows that the said statement was recorded in his presence. 5. The evidence of P.S.O. Ramchandra Shinde P.W. 5 shows that on the basis of Ramnarayan Sinha's statement, C.R. No. 134 of 1994 under sections 307-504 I.P.C. was registered at 5 p.m. at Police Station Vartak Nagar. At 8 p.m. same day, Ramnarayan Sinha succumbed to his injuries and the case was converted to one under section 302 I.P.C. It is pertinent to mention that on 7-12-1994 at 12.40 p.m. Dr. Vaze P.W. 13 medically examined Lalidevi Singh who is alleged to have sustained injuries in the incident and found on her person the following injuries :--- "1. Abrasion 1 cm x 1 cm over right knee, scab formation present, tender. 2. Linear abrasion 5 cm x 1 cm over lateral part of neck right side, scab formation present, tender. 3. Vaze P.W. 13 medically examined Lalidevi Singh who is alleged to have sustained injuries in the incident and found on her person the following injuries :--- "1. Abrasion 1 cm x 1 cm over right knee, scab formation present, tender. 2. Linear abrasion 5 cm x 1 cm over lateral part of neck right side, scab formation present, tender. 3. Linear abrasion 4 cm x 0.25 cm over left forearm, 1 cm over the wrist on dorsal aspect, scab formation present tender." In the opinion of Dr. Vaze the said injuries were inflicted within 24 to 48 hours and were attributable to a hard and blunt object. The injury report of Lalidevi Singh is Exhibit 45. It is pertinent to mention that in his cross-examination, Dr. Vaze stated that the injuries mentioned in Exhibit 45 could be caused by a fall. 6. The autopsy on the corpse of Ramnarayan Sinha was conducted on 6-12-1994 by Dr. Ramchandra Rode P.W. 8 who found on it the following ante mortem injuries :--- "1. Abrasion on nose ½ cm x ¼ cm. 2. Incised wound on front of neck, 4 x ½ cm muscle deep. 3. Incised wound on abdomen right side to umbilicus 2 x 1 cm cavity deep, 4. I.W. on abdomen right side to Injury No. 3 x 1 inch away, 2 x 1 cm cavity deep, 5. I.W. on left thigh, 5 x 1 cm muscle deep, 6. Incised wound on left eye, 5 x 1 cm muscle deep, 7. I.W. on right inguinal region, 1 ½ x ½ cm. muscle deep, 8. I.W. on left palm in between thumb and rear finger 4 x ½ cm muscle deep, 9. I.W. on left hand middle finger and ring finger ½ x ¼ cm muscle deep, 10. I.W. on right arm 1 x ½ cm muscle deep." In the opinion of Dr. Rode, Injury Nos. 2 to 10 were caused by a sharp object and Injury No. 1 by a hard and blunt object. On internal examination, Dr. Rode found as under :--- (a) abdominal cavity full of blood nearly 2 litres, injury due to incised wound on anternal surface 1½ x ½ cm x cavity deep in conjunction with Injury No. 3. 2 to 10 were caused by a sharp object and Injury No. 1 by a hard and blunt object. On internal examination, Dr. Rode found as under :--- (a) abdominal cavity full of blood nearly 2 litres, injury due to incised wound on anternal surface 1½ x ½ cm x cavity deep in conjunction with Injury No. 3. (b) Liver: incised wound on posterior surface on lobe right ½ x ½ x ¼ cm deep in conjunction with Injury No. 4 ; and (c) right intestineal region beneath Injury No. 7, the femoral artery was having a incised wound 1 x ¼" cm with blood clot around it. In the opinion of Dr. Rode the probable cause of death was due to shock following injuries to liver, stomach and femoral artery. In his opinion the said injuries were sufficient in the ordinary course of nature to cause death and were possible by the knife shown to him and article No. 1 (spear). 7. The case was investigated in the usual manner by A.P.I. Vasantrao Chaudhari P.W. 14. On 5-12-1994, he arrested the appellants Prayag Sinha and Vedprakash Sinha vide panchanama Exhibit 50. At that time, the appellant-Prayag Sinha was putting a terricot shirt having blood stains and Vedprakash was putting on a open shirt having blood stains. He seized the said clothes in the presence of public panch Umesh Padwal P.W. 4 who however, turned hostile during trial. On 6-12-1994, the appellant-Vedprakash stated that he could produce the spear which he had concealed behind his house. Consequently, he sent for the public panchas, out of whom one namely Vithal Chorge P.W. 10 has been examined and who also became hostile during trial. He recorded the willingness of appellant Vedprakash to have the spear recovered under a panchanama. Thereafter, appellant-Vedprakash Sinha led him and the panchas to his house and produced a blood stained spear from his house. The said recovery was effected under a panchanama. On 6-12-1994 at 4 p.m. A.P.I. Vasantrao Chaudhari P.W. 14 arrested the appellant-Ashokkumar Sinha. On 7-12-1994, the appellant-Ashok Kumar Sinha expressed his willingness to produce the clothes which he had concealed behind the dairy situated at Sanat Nagar. Consequently, he sent for the public panchas, out of whom one Hemant Mahadit who turned hostile during trial, has been examined as P.W. 12. In his presence, he recorded his willingness. On 7-12-1994, the appellant-Ashok Kumar Sinha expressed his willingness to produce the clothes which he had concealed behind the dairy situated at Sanat Nagar. Consequently, he sent for the public panchas, out of whom one Hemant Mahadit who turned hostile during trial, has been examined as P.W. 12. In his presence, he recorded his willingness. Thereafter, the appellant-Ashok Kumar Sinha led them to his house in Dennis compound where he had concealed his pant and shirt and produced the same. The said recovery was effected under a panchanama. A.P.I. Chaudhari sent the recovered articles to the Chemical Analyst. After completing the investigation, he submitted the charge-sheet against the appellants. 8. The case was committed to the Court of Sessions in the usual manner where the appellants were charged for the offence punishable under section 302 read with 34 I.P.C. to which charge, they pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined 14 witnesses. We may straight away mention that the three of them namely Kusum Singh Lalidevi Singh and Anil Kumar Singh P.Ws. 1, 2 and 4 respectively furnished the occular account. The prosecution also examined P.S.O. Ramchandra Shinde who recorded the statement of Ramnarayan Sinha which has been treated to be F.I.R. and which has been adduced as a dying declaration. It also examined Dr. Vaze P.W. 13 who medically examined Ramnarayan Singh before P.S.O. Shinde had recorded his statement and found him to be physically conscious and fit to give the statement. It also examined A.P.I. Chaudhary P.W. 14 and some public panchas to prove the recoveries effected from the appellants but, in respect of the recoveries, we only have the evidence of A.P.I. Chaudhary for the public panchas have turned hostile. The learned trial Judge accepted the prosecution case against the appellants and convicted and sentenced the appellants in the manner stated in para 1. Hence, this appeal. 9. We have heard learned Counsel for the parties and perused the entire record. In our view, this appeal deserves to be partly allowed inasmuch as the appellant-Prayag Sinha Bharatsinha deserves the benefit of doubt. Hence, this appeal. 9. We have heard learned Counsel for the parties and perused the entire record. In our view, this appeal deserves to be partly allowed inasmuch as the appellant-Prayag Sinha Bharatsinha deserves the benefit of doubt. In the instant case, the evidence of a three-fold nature has been adduced by the prosecution against the appellants namely :--- (a) the dying declaration of the deceased Ramnarayan Singh (Ram Narayan Sinha) recorded by P.S.O. Ramchandra Shinde P.W. 5; (b) the occular account furnished by Kusum Singh P.W. 1, Lalidevi Singh P.W. 2 and Anil Kumar Singh P.W. 4; and (c) recoveries from the appellants. We would first like to take up the dying declaration of Ramnarayan Singh (Ramnarayan Sinha) recorded by P.S.O. Shinde. In the earlier part, we have seen that it was recorded in Marathi at 4.25 p.m. on 5-12-1994. Since it is a crucial piece of evidence, we have earlier extracted its English translation. Its perusal shows that there was enmity between Ramnarayan Sinha and his uncle, the appellant Prayag Sinha on account of dairy business and a civil suit had been filed by Ramnarayan Sinha against the appellant Prayag Sinha. Its perusal further shows that on 5-12-1994, at 3.30 p.m. when Ramnarayan Sinha was sitting in front of Pandey's room and asked the appellants Vedprakash and Ashokkumar, the sons-in-law of the appellant Prayag Sinha-as to why they had broken the lock of his room, they and the appellant-Prayag Sinha abused him and thereafter, the appellant Vedprakash with a spear and Ashok Kumar with a knife started assaulting him. We have gone through this dying declaration and in our view, it inspires implicit confidence. The evidence of P.S.O. Shinde P.W. 5 and Dr. Vaze P.W. 13, to which we have referred to earlier shows that Ramnarayan Sinha was conscious when he made the said dying declaration. A perusal of the said dying declaration shows that the same bears the endorsement dated 5-12-1994 at 4.25 p.m. signed by Dr. Vaze that Ramnarayan Sinha was in a conscious condition to give the statement. It is pertinent to mention that the evidence of Dr. Vaze shows that he was present throughout when the statement was recorded. 10. In our considered view, this dying declaration inspires implicit confidence. Vaze that Ramnarayan Sinha was in a conscious condition to give the statement. It is pertinent to mention that the evidence of Dr. Vaze shows that he was present throughout when the statement was recorded. 10. In our considered view, this dying declaration inspires implicit confidence. We also feel that it squarely shows that the appellants-Vedprakash and Ashok Kumar with a spear and knife respectively in furtherance of their common intention committed the murder of Ramnarayan Sinha. However, in our view, the said dying declaration does not show that the appellant Prayag Sinha shared the common intention with respect to the murder of Ramnarayan Sinha. It only shows that he was merely present when Ramnarayan Sinha was assaulted by the appellants Vedprakash and Ashok Kumar. It is well settled that mere presence does not ipso facto attract the application of section 34 I.P.C. To invoke the application of the said provision, it has to be established that the Criminal act committed by more than one person was committed in furtherance of their common intention. There is nothing in this dying declaration to show that the murder of the deceased was committed in furtherance of common intention of the appellant-Prayag Sinha. 11. We now come to the occular account furnished by Kusum Singh P.W. 1, Lalidevi Singh P.W. 2 and Anil Kumar Singh P.W. 4. We make no bones in observing that we are reticent to accept the claim of these eye-witnesses of having seen the incident. It is pertinent to mention that in the dying declaration, the deceased Ramnarayan Sinha has categorically mentioned that the incident was witnessed by Pandey (Jagnarayan) and his son. Had these witnesses witnessed the incident, then in the dying declaration, their names would have been mentioned. Another circumstance which shows that they did not witness the incident is that the manner of assault deposed to by them is at variance with that in the dying declaration which being the account furnished by the victim Ramnarayan Sinha himself, deserves higher weightage. Earlier, we have mentioned the manner of assault as set out in the dying declaration. All the three eye-witnesses of the incident have described the manner thus:- After Ramnarayan Sinha on learning from Dinesh Sinha that his lock had been broken came home, he went to the house of the appellant Prayag Sinha and asked him as to why he had broken the lock. All the three eye-witnesses of the incident have described the manner thus:- After Ramnarayan Sinha on learning from Dinesh Sinha that his lock had been broken came home, he went to the house of the appellant Prayag Sinha and asked him as to why he had broken the lock. Thereafter, he returned to his house and sat on a cot. Thereafter, the appellant Prayag Sinha armed with a knife came and inflicted a injury on the back side of Ramnarayan Sinha. Appellant Vedprakash inflicted a spear blow on the abdomen of Ramnarayan Sinha; and the appellant Ashok Kumar snatched the knife from Prayag Sinha, and inflicted a blow over the abdomen of Ramnarayan Sinha and when Lalidevi Singh rushed to the rescue of Ramnarayan Sinha, she sustained injury over her left hand. It is pertinent to mention that the occular account for some very obvious reasons cannot be accepted; (a) there is no injury on the back side of Ramnarayan Sinha; (b) it only explains the injuries sustained by Ramnarayan Sinha on his abdomen and chest region and does not explain the five incised wounds which he had suffered on front neck, left eye, left palm, left hand middle finger and right arm. The ocular account also militates against the recitals in the dying declaration because in the dying declaration it has not been mentioned that the appellant Prayag Sinha was armed with a knife and the appellant Ashok Kumar snatched his knife. So far as the injuries of Lalidevi are concerned, we are constrained to observe that the less said about them the better it is. In the first place, they were medically examined by Dr. Vaze P.W. 13 at 12.30 p.m. on 7-12-1994 i.e. nearly forty-five hours after the incident (the incident took place on 7-12-1994 at 12.30 p.m. Secondly, had they been genuine injuries then Lalidevi Singh whose evidence shows that she immediately after the incident rushed to Civil Hospital, Thane where her husband Ramnarayan Sinha was taken and who remained there till 8 p.m. on the date of the incident, would have got thim medically examined at the said hospital without any loss of time. Thirdly, they could be caused by a fall as admitted by Dr. Vaze, in his cross-examination. Had Lalidevi Singh really received the injuries in the incident, then the same would have been reflected in the dying declaration. Thirdly, they could be caused by a fall as admitted by Dr. Vaze, in his cross-examination. Had Lalidevi Singh really received the injuries in the incident, then the same would have been reflected in the dying declaration. But, to repeat neither her name nor her injuries nor the names of other two eye witnesses are contained in it and specifically it has been mentioned therein that the incident was seen by Pandey and his son. For the said reasons, in our view, the occular account which has been furnished by Kusum Singh P.W. 1, Lalidevi Singh P.W. 2 and Anil Kumar Singh P.W. 4 the daughter, wife and nephew of the deceased respectively cannot be accepted. 12. We now come to the recovery evidence. Since the public panchas of recovery have turned hostile and we have the solitary evidence of the Investigating Officer A.P.I. Chaudhari P.W. 14, we do not think that it would be safe to accept it. 13. For the reasons, contained in paragraphs 10 to 12 of this judgment, in our view, the appellant Prayag Sinha deserves the benefit of doubt. A perusal of paragraphs 11 and 12 respectively would show that we have not accepted the occular account and recovery evidence. A perusal of paragraph 10 shows that we have placed reliance on the dying declaration. But, as we have mentioned in the said paragraph, the dying declaration only shows that the appellant Prayag Sinha was present on the place of the incident and does not show that he shared the common intention in respect of the murder of the deceased. It is pertinent to mention that in the dying declaration no weapon has been assigned to Prayag Sinha and the only overt act assigned to him therein is of abusing the deceased. A perusal of the dying declaration would show that the common intention to commit the murder of the deceased was shared by the appellants Vedprakash and Ashok Kumar who assaulted the deceased with a spear and knife respectively. 14. In our view the dying declaration implicitly establishes the involvement of the appellants Vedprakash and Ashok Kumar who are said to have assaulted the deceased with a spear and knife respectively. We have earlier referred to the evidence of the Autopsy Surgeon Dr. Rode. He stated that nine incised wounds suffered by the deceased could be caused by a spear and knife. We have earlier referred to the evidence of the Autopsy Surgeon Dr. Rode. He stated that nine incised wounds suffered by the deceased could be caused by a spear and knife. We have earlier seen that the dying declaration inspires implicit confidence. We may mention that in the said dying declaration the appellant Vedprakash has been attributed the role of assaulting the deceased with a spear and appellant Ashok Kumar the role of assaulting him with a knife and the evidence of Autopsy Surgeon Dr. Rode, to which we have referred to earlier, clinchingly fixes there involvement in as much as Dr. Rode candidly stated that the injuries of the deceased could be caused by a spear and knife. 15. It is well-settled that the conviction can be recorded/sustained on dying declaration simplicitor provided it inspires confidence, see A.I.R. 1958 Supreme Court page 22 (Khushalrao v. State of Bombay)1. In the instant case, we have seen that the dying declaration was recorded in consonance with law and Ramnarayan Sinha was fit to make it. It should be borne in mind that since the attack on Ramnarayan Sinha was made in broad day light and the assailants namely the appellants-Vedprakash and Ashok Kumar were the sons in law of his uncle the appellant Prayag Sinha, he must had no difficulty in recognising them. 16. For the said reasons, in our view the learned trial Judge acted correctly in finding the involvement of the appellants Vedprakash Sinha and Ashok Kumar established in the incident. 17. In our view, there is no manner of doubt that the learned trial Judge acted correctly in convicting them for the offence under section 302 r/w 34 I.P.C. The dying declaration of the deceased Ramnarayan Sinha, to which we have referred to earlier shows that the appellant Vedprakash with a spear and the appellant-Ashok Kumar with a knife assaulted him. The Autopsy Report and the evidence of the Autopsy Surgeon Dr. Rode shows that there were nine incised wounds and one abrasion on the corpse of the deceased. The evidence of Dr. Rode shows that the nine incised wounds could be caused by a spear and knife, the beneath three of them, namely Injury Nos. 3, 4 and 7 there was a severe internal damage, in as-much-as there was incised wound on abdominal cavity incised wound on lobe of liver and cut of femoral artery. The evidence of Dr. Rode shows that the nine incised wounds could be caused by a spear and knife, the beneath three of them, namely Injury Nos. 3, 4 and 7 there was a severe internal damage, in as-much-as there was incised wound on abdominal cavity incised wound on lobe of liver and cut of femoral artery. The evidence of Dr. Rode shows that the deceased died on account of injuries on liver, stomach and femoral artery and the said injuries were sufficient in the ordinary course of nature to cause death. Since the appellants-Vedprakash and Ashok Kumar in a concerted manner caused these injuries, we do not even have an iota of doubt that they committed the murder of the deceased in furtherance of their common intention. Hence, an offence under section 302 r/w 34 I.P.C. would be made out against them. 18. We would be failing in our fairness if we do not refer to three submissions canvassed by learned Counsel for the appellants, Mr. A.P. Mundargi. Firstly, Mr. Mundargi urged that the testimony of the three eye-witness cannot be relied upon as Ramnarayan Sinha has expressly mentioned in his dying declaration that Pandey and his son saw the incident and the manner of assault unfurled in the ocular account is at broad variance with that furnished by Ramnarayan Sinha in his dying declaration. We find merit in the said submission. It is pertinent to mention that in para 11 of this judgment we have recorded a finding that the ocular account cannot be relied upon. However, we wish to emphasise that merely because the manner of assault furnished in the dying declaration is at variance with the ocular account, it does not mean that the dying declaration would also have to be rejected. In all fairness, we would like to mention that this has not been urged by Mr. Mundargi either. It is well settled that a dying declaration has to be judged on its own merits. We may mention that after judging it on its own merits we have reached the conclusion that an offence under section 302/34, is made out against appellants Vedprakash and Ashok Kumar. 19. Secondly, Mr. Mundargi either. It is well settled that a dying declaration has to be judged on its own merits. We may mention that after judging it on its own merits we have reached the conclusion that an offence under section 302/34, is made out against appellants Vedprakash and Ashok Kumar. 19. Secondly, Mr. Mundargi urged that we should not place any reliance on the dying declaration because : (a) there is over writing in respect of the names of the appellants Vedprakash and Ashok Kumar in it ; (b) the timing when its recording started and ended is not mentioned therein; (c) there are some corrections in it which are not initialled; and (d) it remained with the police till it was produced by the prosecution. We have reflected over the said criticisms and perused the original dying declaration (Exhibit 24) and we do not find that the so called infirmities effect the worth of the dying declaration. It is true that there is over writing in respect of the names of the appellants but, what appears is that names originally written were blurred and by over writing have been made clear. We may also mention that a perusal of the dying declaration does not show that the only place where the names of the appellant Vedprakash and Ashok Kumar have been mentioned is the place where they have been over written. They have also been mentioned earlier. At any rate, on this mere circumstance, the said dying declaration cannot be thrown out, specially when no suggestion was made to P.S.O. Shinde, who recorded it, that he had subsequently inserted the names of the said appellants in the dying declaration. So far as criticism (b) is concerned, it is inconsequential. The endorsement of Dr. Vaze contained in the dying declaration shows the time as 4.25 and the date as 5-12-1994. The evidence of P.S.O. Shinde shows that he took 15 minutes to record it. In the circumstances, it appears that the dying declaration was recorded around 4.25 p.m. Hence, infirmity (b) is also inconsequential. So far as infirmity (c) is concerned, on perusing the dying declaration, we find that there are four corrections in it but, they are inconsequential. The evidence of P.S.O. Shinde shows that he took 15 minutes to record it. In the circumstances, it appears that the dying declaration was recorded around 4.25 p.m. Hence, infirmity (b) is also inconsequential. So far as infirmity (c) is concerned, on perusing the dying declaration, we find that there are four corrections in it but, they are inconsequential. We make no bones in observing that P.S.O. Shinde should have initialled them but, merely because he did not do so, in our view, would not result in us rejecting the evidence of the said dying declaration. So far as infirmity (d) is concerned, we are afraid that there is nothing in evidence to show that the dying declaration remained with the police till it was produced in trial Court. In our view, there is no evidence to back up this submission of the appellant's Counsel. It should be borne in mind that the dying declaration has been recorded in the presence of Dr. Vaze P.W. 13 and since both he and P.S.O. Shinde P.W. 5 had no rancour or enmity against the said appellants, they would not have been parties to a concocted dying declaration against them. The circumstance that apart from abusing the deceased, on overt act has been assigned to appellant Prayag Sinha in the dying declaration inspite of the fact that it was between him and the declarant Ram Narayan Singh that there was enmity is a in built guarantee that it is a truthful and not a concocted document. 20. Finally, Mr. Mundargi urged that the learned trial Judge erred in convicting the appellants Vedprakash Sinha and Ashok Kumar Sinha for the offence under section 302 r/w 34 I.P.C. and instead should have convicted them for one under section 326 r/w 34 I.P.C. He urged that in the factual matrix in which the incident took place as per the dying declaration of Ramnarayan Sinha, the assault on Ramnarayan Sinha was made by the appellants Vedprakash and Ashok Kumar with a spear and a knife respectively, because he questioned them for breaking the lock of his room an hour earlier. Mr. Mundargi urged that this motive was not grave enough for us to infer that the said appellants shared the common intention to commit his murder. We regret that we do not agree with this submission. Mr. Mr. Mundargi urged that this motive was not grave enough for us to infer that the said appellants shared the common intention to commit his murder. We regret that we do not agree with this submission. Mr. Mundargi also urged that although the post mortem report and the evidence of the Autopsy Surgeon show that the deceased sustained 9 incised wounds and one abrasion but, six of the incised injuries sustained by the deceased were simple in nature and the internal damage was only found beneath three of them namely Injuries Nos. 3, 4 and 7, Mr. Mundargi urged that the said injuries were not caused in furtherance of the common intention of the appellants but, in excess of it. He urged that the deceased in his dying declaration has not indicated as to which of the said appellants caused them. He contended that one of the said appellants may have caused them. Hence, he urged that both the appellants should be convicted under section 326/34 I.P.C. We regret that we cannot accede to his submission. It is pertinent to mention that a perusal of the post mortem report which we have extracted earlier, shows that six of the incised in injuries suffered by the deceased were on vital parts of his body. This circumstance coupled with the internal damage suffered by the deceased shows that the said appellants shared the common intention to cause them and commit the murder of the deceased. We have referred to the internal damage in para 6 of this judgment. It was massive. In our view, the act of the appellants would be squarely covered by Clause thirdly of section 300 I.P.C. the breach of which is punishable under section 302 I.P.C. To attract the application of the said clause, two essentials have to be satisfied :--- (a) there should be intention to inflict the injuries inflicted, in contra distinction to their being accidental; and (b) the injuries inflicted should be sufficient in the ordinary course of nature to cause death. As is clear from the material furnished earlier both the essentials are satisfied in the instant case. The dying declaration of Ramnarayan Sinha shows that the appellant Vedprakash with a spear and the appellant Ashok Kumar with a knife intentionally and conjointly assaulted him. The evidence of Dr. As is clear from the material furnished earlier both the essentials are satisfied in the instant case. The dying declaration of Ramnarayan Sinha shows that the appellant Vedprakash with a spear and the appellant Ashok Kumar with a knife intentionally and conjointly assaulted him. The evidence of Dr. Rode, the autopsy Surgeon, makes it categorically clear that the deceased died on account of injuries to liver, stomach and femoral artery and the said injuries were sufficient in the ordinary course of nature to cause death. In such a situation, the ratio laid down by the Apex Court in (Virsa Singh v. State of Punjab)2, reported in A.I.R. 1958 Supreme Court page 465, would have application and the offence made out against the appellants Vedprakash and Ashok Kumar would be one under section 302 r/w 34 I.P.C and not one under section 326 r/w 34 I.P.C. as canvassed by Mr. Mundargi. 21. For the said reasons, we partly allow this appeal. We set aside the conviction and sentence of the appellant Prayag Sinha Bharatsinha for the offence under section 302 r/w 34 I.P.C. and acquit him thereunder. We direct that in case he has paid the fine, it shall stand refunded to him. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged. We however, confirm the conviction and sentence of the appellants Vedprakash Birendra Kumar Sinha and Ashok Kumar Upendrakumar Sinha for the offence under section 302 r/w 34 I.P.C. and dismiss their appeal. They are in jail and shall serve out their sentence. Appeal allowed partly. -----