D. Biswas, J.-- This appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Jorhat in Sessions Case , No. 83 (J-J)/96. The judgment was delivered on 7.8.99 convicting both the appellants under section 302 read with section 34 of the Indian Penal Code for causing death of Budhin Hazarika on 29th February, 1996 and sentencing both of them to imprisonment for life with fine of Rs.500, in default rigorous imprisonment for one month each. 2. Being aggrieved of the aforesaid judgment, this appeal has been preferred challenging the propriety and legality of the judgment on the ground mat the statement of the witnesses regarding dying declaration are not sufficient enough to lead to the conviction of the appellants and that the provisions of section 34 IPC have been wrongly invoked since there is no specific evidence as to the part played by each of the appellants. 3. We have heard Mr. A. Thakur and Mr. JM Choudhury, learned counsel for the appellants and also Mr. D. Saikia, learned Public Prosecutor, Assam. 4. It would appear that on 29th February, 1996 Shri Putul Chandra Hazarika lodged an ejahar before the Officer-in-charge, Jorhat Police Station wherein it has been specifically stated that the deceased before his death told the co-villagers that Shri Ganesh Kakoti A2 and Shri Deepak Bora Al, the appellants had assaulted him. 5. Before we embark upon the discussion of the evidence of the witnesses, it would be for of convenience to reproduce herein below the evidence of the Medical Officer, PW 14 Dr. Ranjit Kumar Baruah who had performed the post-mortem examination on the dead body of the deceased Budhin Hazarika on police requisition and after identification by police constable No. 306 Kudush Ali. The injuries found by the witness are as follows : External appearance : 1. Incised wound 1 ½” x ½” over forehead to the midline on the left side. 2. Incised would 2” long involving the left pinna of the ear partially detaching the left pinna at its lower part, 3. Extensive incised would involving the right palm of hand and forearm on its vental aspect, size 8" x 2" x 1". Cutting the muscles tendons and vessels. 4. 2. Incised would 2” long involving the left pinna of the ear partially detaching the left pinna at its lower part, 3. Extensive incised would involving the right palm of hand and forearm on its vental aspect, size 8" x 2" x 1". Cutting the muscles tendons and vessels. 4. Incises would placed transversely over left palm of hand near the base of little ring middle and fore finger, cutting the structures, size 3 ½” x 1” x ½” 5. Two numbers superficial incised wound involving right leg below knee, size 3” x ½” x ½”. 6. One penetrating would involving the postero-lateral aspect of the right chest wall about its middle, size 1” x ½” x 2 ½”. Thorax-Right pleural cavity-contains blood. Lower part of the right lung-lacerated. Cranium and spinal canal-Linear fracture of the frontal bones present. Membrane and brain-Congested. Bones, muscles and joints - Injuries as described in External Injury No 1. There was linear fracture of the frontal bone of the scalp proximal inter-phalangeal joint of left ring finger of the hand dislocated. Other organs are healthy. The injuries are ante mortem. 6. In the opinion of the Doctor, the death was caused due to shock and hemorrhage as a result of the injuries sustained by the deceased. According to the Doctor, the injury No. 6 reproduced above is sufficient in the ordinary course of nature to cause death. The doctor further made a statement that the weapon like Mat Ext 4 i.e. a sword is capable of causing the penetrating injury as injury No. 6. 7. We have already stated that the prosecution is primarily based on the dying declaration made by the deceased to the co-villagers who rushed to the place of occurrence after hearing his cries. PW 1 Smti Binu Hazarika who is neither related to the accused-appellants nor to the deceased stated that the occurrence took place near her house at about 9.30 PM when she was cooking meal. She heard cries 'marilu' (dying). She recognised the voice and came out immediately. She went near the injured Budhin and asked what had happened. In reply Budhin told her that Deepak alias Lara Al and Ganesh alias Baba A2 had 'cut' him with sharp weapons and that they had fled away. Budhin also mentioned of a weapon namely, 'Khukri dao'. She heard cries 'marilu' (dying). She recognised the voice and came out immediately. She went near the injured Budhin and asked what had happened. In reply Budhin told her that Deepak alias Lara Al and Ganesh alias Baba A2 had 'cut' him with sharp weapons and that they had fled away. Budhin also mentioned of a weapon namely, 'Khukri dao'. In similar tune PW 2 Shri Bhim Kanta Hazarika deposed that after hearing the cries which came from the direction of the road, he lit up a lamp and went out where he found many people already assembled. He also saw PW 1 in the gathering. On being asked, Budhin told him that Deepak and Ganesh had 'cut' him. PW 3 Smti Binu Hazarika who went to the place of occurrence after hearing the cries saw the injuries on Budhin's hand, forehead and other parts of the body and poured water on him. On being asked by this witness, injured Budhin told her that Deepak alias Lara and Ganesh alias Baba had 'cut' him. PW 6 Sri Bitumoni Kalita, PW 7 Sri Putul Hazarika, PW 8 Sri Rana Hazarika and PW 9 Smti Maikon Kalita deposed that they all went to the place of occurrence where they found Budhin in a injured condition. In reply to their questions Budhin told them that it was the appellants namely, Deepak and Ganesh, who had assaulted him. 8. The evidence of the above witnesses who are neighbours and disinterested clearly indicate that the deceased Budhin after the assault was in a position to speak. The medical report does not show any head injury from which inference could be drawn that the injured was not in a position to speak. No question was also put to the Medical Officer in this direction. Even no suggestion was also put to any of the above witnesses to this effect. This shows that Budhin was in a position to speak and he had in fact told all the witnesses that Deepak and Ganesh had assaulted him. There is nothing in the statement of the witnesses elicited during the course of cross examination to suggest any deep seated enmity between them and the appellants for which they came forward to depose falsely. The credibility of the above witnesses could not be shaken in any manner, raising a shadow of doubt. 9. There is nothing in the statement of the witnesses elicited during the course of cross examination to suggest any deep seated enmity between them and the appellants for which they came forward to depose falsely. The credibility of the above witnesses could not be shaken in any manner, raising a shadow of doubt. 9. Besides what is stated above, it is of immense importance to refer here the evidence of the Police Officer PW 17 who had investigated the case. He a stated in his evidence that accused Deepak Bora Al told him that the weapon of offence was kept concealed after commission of the crime at a distance of 2½ KM from the place of occurrence i.e. at Nakari Rajatia area. At about 10.35 PM on the same day i.e. 3.3.96 this witnesses accompanied by the accused Deepak went to the aforesaid place and on being shown brought out an iron sword measuring 32 inches in length (Mat Ext 4). 10. This part of the evidence leading to the discovery of the weapon of offence is not strictly in compliance with the provisions of section 27 of the Indian Evidence Act since there is nothing on record to show that the statement of the accused have been reduced to writing by the I/O before he proceeded for discovery of the weapon. However, for that reason it does not loose its relevance altogether. This is not a case based on the evidence relating to discovery only. The evidence regarding dying declaration of the deceased read with all the surrounding circumstances including recovery of the weapon of offence clearly establish that the appellants had launched an attack on Budhin Hazarika as alleged by the prosecution and caused injuries on his person with sharp cutting weapon which were in the ordinary course of nature sufficient to cause his death. 11. A question has been raised by Mr. Thakur, learned counsel that there is no evidence at all in order to show the part played by each of the appellants and, therefore, not of them can be convicted invoking section 34 of the IPC. Section 34 IPC deals with common intention. It is clear from the evidence as discussed above that in the dead of night both the accused persons were present and they jointly assaulted Budhin. Section 34 IPC deals with common intention. It is clear from the evidence as discussed above that in the dead of night both the accused persons were present and they jointly assaulted Budhin. All the four injuries found on the person of the deceased were incised injuries caused by sharp weapon. Their presence with sharp cutting weapon and the act of assault together clearly indicate that each of them shared their mind in persecution of their design to eliminate Budhin. 12. At this stage Mr. JM Choudhury, learned senior counsel submitted that since the doctor evinced that only the injury No. 6 was sufficient to cause instantaneous death in the ordinary course of nature, both the appellants cannot be convicted under section 302/34 IPC. The learned counsel further submitted that the sentence may be converted from 302 IPC to 304 Part I or Part II IPC. 13. Culpable homicide has been defined in section 299 IPC. Culpable homicide is murder under certain circumstances as codified in section 300 IPC. The explanations to section 300 IPC provide the circumstances where a case can be converted from section 302 IPC to section 304 IPC. There is no evidence on record in order to show that any of the circumstance which permits such conversion is available in the instant case. That being so, we are of the opinion that the conviction under section 302 IPC has to he maintained. 14. In the result, the appeal is found to be devoid of merit and, hence dismissed. A copy of the judgment be furnished to the accused appellants through the Superintendent, District Jail, Jorhat.