M. C. JAIN, J. The order of conviction and sentence dated 29-1-1981 passed by Sri S. N. Prasad, III Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 282 of 1979 has been challenged by the two appellants Pirthi and Dalip in this appeal. Both of them have been convicted under Section 394, IPC read with Section 34, IPC with a sentence of eight years rigorous imprisonment and under Section 302, IPC read with Section 34, IPC with a sentence of life imprisonment. Both the sentences have to run concurrently. 2. The victim of the felony was one Hira Singh. The incident occurred on 9-10-1978 at about 3 p. m. at the outskirts of village Devipura near the sugarcane field of Sapattar, P. S. Thana Bhawan, district Muzaffarnagar and the report was lodged by the victim himself the same day at 4. 30 p. m. , who subsequently died. The distance of the police station from the place of occurrence was about four miles. Both the appellants were allegedly armed with lathis. Out of them, Dalip died during the pendency of the appeal and the appeal has abated so far as he is concerned. The Court is now concerned with the appeal of Pirthi only. 3. At the revision of the list, none turned up from the side of the appellant Pirthi to argue the appeal, though S/sri P. S. Pandey and Dharmendra Singhal, Advocates represent him on record. The complainant is also represented by Sri D. N. Wali, Advocate, but he too did not turn up at the hearing of the appeal. We have heard Sri G. S. Bisaria, learned A. G. A. from the side of the State and have perused the record. We propose to decide the appeal on merits. 4. The facts, shortly stated, as surfacing from the FIR and the evidence adduced in the Court are these: The victim Hira Singh was a resident of village Mahawatpur, police station Shamli, District Muzaffarnagar. On 9-10-1978 at the fateful time he was coming back to his village Mahawatpur after selling his paddy crop in town Thana Bhawan. When he reached near the sugarcane field of Sapattar at about 3 p. m. situated between village Devipura and main road, after getting down from the bus, the two accused persons Pirthi and Dalip resident of his village Mahawatpur emerged from the said sugarcane field and started assaulting him with lathis. When he reached near the sugarcane field of Sapattar at about 3 p. m. situated between village Devipura and main road, after getting down from the bus, the two accused persons Pirthi and Dalip resident of his village Mahawatpur emerged from the said sugarcane field and started assaulting him with lathis. On hearing the alarm raised by him, the witnesses Thakar PW 3 and Lal Singh PW 4 came rushing. The two accused persons, after assaulting him and robbing him of Rs. 300 which he had on his person, disappeared in the said sugarcane field. The victim Hira Singh sustained a number of injuries. The incident was reported at his house by Lal Singh PW 4. Hira Singhs wife came to the spot and accompanied him to the police station Thana Bhawan where he lodged the report after getting it scribed by Omveer Singh PW 7. The investigation was started by S. I. R. D. Arya PW 9. He recorded the statement of the injured victim under Section 161, Cr. P. C. He was referred to P. H. C. Thana Bhawan for medical examined Constable Deewan Singh PW 10 took him there. He was medically examination there on 9-10-1978 at 5 p. m. by Dr. Akhtar Ali PW 2. The following injuries were found on his person: (1) Swelling of right forearm, junction of upper 2/3 and lower 1/3. Suspected fracture of radius and ulna. No contusion, no laceration. (2) Incised wound 6 cm x 2 cm x 2 cm deep between index and middle finger of right hand. No fresh bleeding. Blood clot on palmer surface. (3) Lacerated wound 4 cm x 1 cm at right lower leg, 4 cm above the lower head fibula (lateral side) red in colour. No fresh bleeding. (4) Lacerated wound 2 cm x 2 x bone deep over skin of tibia, 8 cm above ankle joint line of left leg. Slight fresh bleeding present. No blood clot found around the wound. 5. He was sent to District Hospital Muzaffarnagar for needed medical help. He, however, succumbed to his injuries on way to the District Hospital. His dead-body was brought back to the police station where inquest report was prepared by S. I. R. D. Arya PW 9. The dead-body was sent for post-mortem after completion of formalities. It came to be conducted by Dr. N. D. Bahuguna, PW 1 on 10-10-1978 at 3. He, however, succumbed to his injuries on way to the District Hospital. His dead-body was brought back to the police station where inquest report was prepared by S. I. R. D. Arya PW 9. The dead-body was sent for post-mortem after completion of formalities. It came to be conducted by Dr. N. D. Bahuguna, PW 1 on 10-10-1978 at 3. 30 p. m. The deceased was about 60 years of age and about one day had passed since he died. The following ante-mortem injuries were found on his person: (1) Bruise 6" x 3" on outer part right arm. (2) Bruise 4" x 2" on upper and outer part of right forearm. (3) Bruise 3-1/2" x 2" back in middle, right forearm, Simple fracture of radius and ulna, middle below. (4) Lacerated wound 1-1/2" x 3/4" x Muscle deep in the arch of right index and middle fingers. (5) Abrasion 2" x 1/2" on lower and outer part of right leg. (6) Lacerated wound 1" x 1/4", bone deep on front and lower one third region of left leg. (7) Bruise 4" x 1-1/2" on back and middle of chest left side. 6. On internal examination, fracture of 5th and 6th rib from vertebral column of left side was found. Lower lobe of left lung was punctured and fractured. The cause of death was shock and haemorrhage as a result of ante-mortem injuries. 7. The accusation was denied by both the accused. The accused appellant Pirthi with whom the Court is presently concerned, stated under Section 313, Cr. P. C. that on the date of the alleged occurrence at about 12 Oclock in the day, the deceased Hira and his sons Khemu, Leela and Tirkha assaulted his uncle Bhola, Ramesh son of Bhola and Dalip, his cousin brother. Bhola even suffered a fracture. During the course of that incident, the defence was made from their side. The report regarding that incident had been lodged by Ramesh at police station Shamli and the persons aforesaid had been challaned ultimately resulting in conviction. For that enmity, they claimed false implication. 8. At the trial, the prosecution in all examined 10 witnesses. Out of them, the witnesses of fact were Thakar PW 3 and Lal Singh PW 4. The report regarding that incident had been lodged by Ramesh at police station Shamli and the persons aforesaid had been challaned ultimately resulting in conviction. For that enmity, they claimed false implication. 8. At the trial, the prosecution in all examined 10 witnesses. Out of them, the witnesses of fact were Thakar PW 3 and Lal Singh PW 4. Omveer Singh PW 7 was the scribe of the FIR written at the dictation of the victim and Badari Prasad PW 5 was the shopkeeper of Thana Bhawan where the victim had sold his paddy that day for Rs. 223. 50p. He deposed about this fact filing the copy of entry in this behalf in his account book too Ex. Ka-3. In defence, reliance was placed on the judgment dated 28-8-1980 passed by Sri R. K. Sharma, the then Ist Judicial Magistrate, Muzaffarnagar in criminal case No. 770 of 1979, State v. Khemchand and others, under Section 323 read with Section 34, IPC and 325 read with Section 34, IPC. It relates to the incident of 9-10-1978 of 12 Oclock noon, whereby Khem Chand, Leela and Tirkha were convicted with sentences passed against them. By the judgment of the appellate Court dated 8-10-1980 the appeal arising out of the said case was dismissed. It would be recalled that the appellant Pirthi spoke about this earlier incident for the first time in his statement under Section 313, Cr. P. C. , as we have indicated earlier. 9. To begin with, it should be stated that the earlier incident of 12 Oclock noon of 9-10-1978 to which the two judgments referred to above relate have no bearing on the present case which took place later that day at about 3 p. m. It is not at all necessary to dilate over the earlier incident. 10. The matter for consideration here is as to whether Hira Singh was assaulted and robbed on 9-10- 1978 at about 3 p. m. by the appellant Pirthi and deceased appellant Dalip as is the prosecution case. Assuming that the earlier incident had taken place, that could not give liberty or licence to the aggrieved party to retaliated and attack Hira Singh while he was returning from the market of Thana Bhawan after selling his paddy produce. Assuming that the earlier incident had taken place, that could not give liberty or licence to the aggrieved party to retaliated and attack Hira Singh while he was returning from the market of Thana Bhawan after selling his paddy produce. If this incident is found to be proved by the prosecution evidence, as did at the trial, the legal consequence are bound to follow. Of course, the accusation has to be tested on the strength of the evidence adduced at the trial and attending circumstances. To be short, the earlier incident of the same date of 12 Oclock noon complained of from the side of the accused appellant could not and would not blur the view to be taken on the strength of the evidence adduced in the present case, together with relevant circumstances. It may be observed as passing reference that Hira Singh was not alleged to be an injured of that incident. Another FIR of an incident of the same date was lodged by Khemchand son of Hira Singh deceased against Dalip, Pirthi (accused in the present case), Ramesh and Kali Ram about an occurrence of 9 a. m. In it also, Hira Singh was not alleged to be an injured. Had he sustained injury in that incident at 9 a. m. , it would not have been omitted, to be so mentioned in the FIR lodged by his son. Moreover, the medical examination of Hira Singh was conducted in P. H. C. Thana Bhawan on 9-10-1978 at 5 p. m. That report regarding the incident of 9 a. m. was lodged by Khem Chand on 9-10-1978 at 12. 40 p. m. The medical examination of Hira Singh would not have been delayed till 5 p. m. if he had sustained injuries in that incident of 9 a. m. Really speaking, the non-mention of the factum of Hira Singh being injured of the incident of 9 a. m. , makes it abundantly clear that the present incident was a separate one. Even if the earlier incident (s) had taken place on that date on 9 a. m. and/or 12 Oclock noon, the same had nothing to do with the present incident. It was a different incident which took place at a different time and at different place, not to be impacted by the earlier incident (s), whatever, of the same date. 11. It was a different incident which took place at a different time and at different place, not to be impacted by the earlier incident (s), whatever, of the same date. 11. A contention was raised before the lower Court that there was conflict between the ocular testimony, medical evidence and medical examination report of the deceased Hira Singh prepared by Dr. Akhtar Ali PW 2 at P. H. C. Thana Bhawan on 9-10-1978 at 5 p. m. and the post-mortem report of the deceased prepared by Dr. N. D. Bahuguna, PW 1 on 10-10-1978 at 3. 30 p. m. , inter se. In the injury report, Injury No. 2 has been shown as incised wound 6 cm x 2 cm and 2 cm deep between index and middle fingers of right hand. On the other hand, this injury is described as lacerated wound in the post- mortem report. The eye-witness account is that the two assailants had assaulted the victim with lathis. We are of the opinion that the argument was rightly rejected by the learned trial Court. The reason is contained in the deposition of Dr. Akhtar Ali PW 2 who stated that Injury No. 2 found on the person of the deceased could be caused by lathi, if the same was wielded with much force. Having regard to the seat of the said of the seat of the said injury, it could look like an incised wound despite having been caused by blunt object (lathi ). Therefore, there is no conflict whatsoever either between the ocular testimony and medical evidence or injury report and post-mortem report of the deceased inter se. 12. Another important aspect of the matter is that though Ex. Ka-10 purported to be statement of the deceased under Section 161, Cr. P. C. could not be treated to be a valid dying declaration as rightly held by the learned trial Judge in view of Regulation 115 of U. P. Police Regulation for not obtaining the signature or thumb impression of the declarant or the witnesses, but the FIR lodged by the victim himself with promptitude at the police station immediately after 1-1/2 hours of the incident has the character of dying declaration and is to be treated as such. It was scribed by Omveer Singh PW 7, as emphatically stated by him, on dictation of the victim Hira Singh. It was scribed by Omveer Singh PW 7, as emphatically stated by him, on dictation of the victim Hira Singh. After writing, he had read over the contents to him whereafter the latter had put his thumb mark thereon. He satisfactorily explained the circumstances under which he happened to write down the FIR at the dictation of the victim. He was an employee as tubewell operator in village Gangoh, District Saharanpur and was on three days leave. He had come to his village Mahawatpur. The victim was also resident of the same village. On the date of occurrence, he had gone to Thana Bhawan Town for purchasing manure and waited there upto 3. 30 p. m. at Co-operative Society building. Then, coming to know about the non-availability of manure, he proceeded to bus stand. He was waiting for the bus at the bus stand when the victim with his wife was found there sitting on rickshaw. The wife of the victim called him. He himself inquired from Hira victim as to what had happened and he explained the incident to him. It was thereafter that he wrote the FIR at his dictation. He was thoroughly cross-examined but nothing came out to infer that he was interested or partisan witness. He had no enmity either with the accused. The statement of Head Constable Mahavir Sing PW 6 is also there who has stated that the written report had been handed over to him by Hira Singh at 4. 30 p. m. on the basis of which he had written Chik FIR and made entry in the G. D. It was thereafter that he was sent for medical examination. As has come to be referred to earlier, the victim Hira Singh was medically examined at P. H. C. Thana Bhawan on 9-10-1978 at 5 p. m. There is no mention in the injury report that he was unconscious. No suggestion was put either to Dr. Akhtar Ali PW 2 who medically examined him in P. H. C. at 5 p. m. that he was unconscious at that time. It justifiably follows that he was conscious by that time. Therefore, the FIR lodged by the victim is to be taken to be a genuine document whereof he himself was the author, having got it written by Omveer Singh PW 7 and thumb-marking it after being read over the same. It justifiably follows that he was conscious by that time. Therefore, the FIR lodged by the victim is to be taken to be a genuine document whereof he himself was the author, having got it written by Omveer Singh PW 7 and thumb-marking it after being read over the same. He took the same to the police station and lodged it there. Another aspect of the matter should be taken note of that at the time of the lodging of the FIR he was accompanied by his wife. By the time the FIR was lodged the victim or his wife, village rustics, could not anticipate that he (victim) would meet his end shortly and, therefore, the FIR should be shown as lodged by him so that it could later be treated as dying declaration. What we wise to emphasize is that the FIR lodged by the victim (who later on died) has the ring of spontaneity and is his dying declaration. 13. Further, the case not only hinges on the dying declaration of the deceased. There is the trustworthy eye-witness account of Thakar PW 3 and Lal Singh PW 4, whose names are found mentioned in the FIR also. The accused could not show any enmity with any of them. They were also not shown to be thick with the deceased. Both of them were residents of the same village and were going to Shamli for certain purchases when they witnessed the incident on reaching near the sugarcane field of Sapattar. After the incident Lal Singh PW-4 had gone to inform the wife of the victim. Devipura and Mahawatpur (which was the village of the victim and the deceased) had conterminous boundaries. Therefore, they knew the victim and the accused from before and there could be no question of any mistaken identify about the assailants of this incident of broad daylight. 14. There was evidence of Badari Prasad PW 5 also to whom Hira Singh victim had sold paddy for Rs. 223/50p that day. We note that an argument was raised before the lower Court that the prosecution case was about robbing of Rs. 300 by the accused from the person of the victim, whereas as per the testimony of Badari Prasad PW 5 paddy was sold for Rs. 223. 50p. The argument was rightly rejected by the lower Court. The amount of Rs. We note that an argument was raised before the lower Court that the prosecution case was about robbing of Rs. 300 by the accused from the person of the victim, whereas as per the testimony of Badari Prasad PW 5 paddy was sold for Rs. 223. 50p. The argument was rightly rejected by the lower Court. The amount of Rs. 300 on the person of the deceased could be inclusive of the price of paddy sold and the money already held by him. 15. On consideration of all the material aspects of the matter it comes out that actually Hira Singh was assaulted by the present appellant Pirthi and the deceased appellant Dalip, more in retaliation to the earlier incident of the day of which they were aggrieved. They were acting in concert and shared the common intention of each other. After murderously assaulting the victim to avenge themselves, they robbed him also of the amount found on his person. They have rightly been convicted and sentenced and no interference is called for by this Court in this appeal. 16. In view of the above discussion, the appeal is hereby dismissed insofar as it concerns the appellant Pirthi. It has already abated with regard to the other appellant Dalip who has died. The appellant Pirthi who is on bail shall be arrested and lodged in Jail to serve out the sentence passed against him by the trial Court. 17. The office shall send the copy of this judgment along with the record to the lower Court to ensure compliance of this judgment under intimation to this Court within two months. Appeal dismissed. .