Heard learned Counsel for the parties. 2. This criminal appeal arose from an order of conviction under Sections 302/149, 148, 147 IPC. Under Section 3021149 IPC the appellants were convicted to undergo imprisonment for life. Under Section 148 IPC Shambhu Nath was convicted and sentenced to one years R. I. and other five appellants, Kapil Deo Tewari, Vijai Tewari, Vijai Pathak, Ambika Pathak and Shyam Narain, were sentenced to undergo six months R. I. under Section 147 IPC. The sentences were directed to run concurrently. 3. The brief facts of the case are that there occurred some arguments between deceased Bhunwar Tewari and three appellants Shambhoo Nath Tewari, Shyam Narain Tewari and Ambika Pathak. These three persons earlier were charged with the kidnapping of the daughter of the deceased, Savitri. They married her to some one of their choice. Some criminal litigation was launched by the deceased against the above said persons in the Court at Varanasi. These persons pressured the deceased to settle the dispute out of Court. The deceased never accepted the proposal. A day before the occurrence date was in the said case in the Court. They again tried to persuade the victim to compromise the case out side the Court. The deceased refused to oblige them. They then told the victim that they will kill him within six months. The deceased wa further asked to drop the litigation otherwise he will not survive. On account of the said enmity, on the date of occurrence i. e. 30-11-1980 at 6. 00 a. m. when the deceased was going to the well for taking his bath, accused Shyam Narain exhorted the other accused to kill him. Seeing him Shambhoo Nath Tewari armed with Gandasa and others armed with lathis arrived there. They shouted in a chorus, "kill him, we will fight another litigation". All the assailants started to assault him whereupon the victim raised an alarm. It attracted Rambriksh Pandey, Ramyati Pandey sons of Kanhaiya Pandey, Ram Charitra Pandey and his wife Sushila Devi to the place of occurrence. On seeing the above witnesses approaching the assailants took to their heels. The victim suffered injuries of lathis and Gandasa. 4. The victim was taken by his wife to Police Station Baluwa. Here a report was prepared. It was dictated by him and was scribed by (PW 3) Brij Mohan Singh. On seeing the above witnesses approaching the assailants took to their heels. The victim suffered injuries of lathis and Gandasa. 4. The victim was taken by his wife to Police Station Baluwa. Here a report was prepared. It was dictated by him and was scribed by (PW 3) Brij Mohan Singh. Thereafter, it was handed over to the Head Constable (PW 4) Ram Vilas Pandey who prepared a chik FIR and G. D. etc. The case was registered under Sections 147/148/323/324/307 IPC. The deceased thereafter was taken to the hospital, Chahaniya Primary Health Centre, Varanasi, two and a half kilometer from the place of occurrence. He was medically examined by (PW 6) Dr. Ramji Pandey on 20-11-1980 at 9. 30 a. m. In all 14 injuries were found on his person. Injury Nos. 2 to 4 were kept under observations and X-ray was advised. Some of the injuries were simple in nature. They were caused by blunt object except injury No. 14 which was caused by a sharp edged weapon. Duration was fresh. He was immediately, after the medical examination, referred for Kabir Chaura Hospital, Varanasi. The victim breathed his last at the gate of Kabir Chaura Hospital. His body was sent for post-mortem on the next day i. e. 1- 12-1980 at 4. 00 p. m. 5. In the post-mortem examination 4 injuries were found on the body of the deceased out of which one was a lacerated wound as noted by Dr. Siddh Gopal (PW 8 ). Out of them injury No. 2 was found grievous with the facture of the second metacarpal bone on left hand back side. A contusion was noted as injury No. 1. The contusion was 12 cm x 2. 5 cm on the right side of chest near the right nipple. Another lacerated wound was found as injury No. 3 on the upper part thigh bone deep, with fracture of Tibia and fibula. The injury No. 3 noted in the post-mortem report, conforms to the injuries No. 1 to 3 noted in the medical examination. Rest of the injuries on the body was not found by the medical officer who conducted the post-mortem examination. Injuries No. 4, 5, 6, 8, 9, 10, 12, 13 and 14 were not found in the post-mortem examination report. Rest of the injuries on the body was not found by the medical officer who conducted the post-mortem examination. Injuries No. 4, 5, 6, 8, 9, 10, 12, 13 and 14 were not found in the post-mortem examination report. This anomaly was not resolved either by the defence or the prosecution during the examination of the two medical officers PW 6 and PW 8. PW 6 was only suggested to the extent that if the deceased died on 30-11-1980 some of the injuries would completely dissipate. He denied the suggestion of the Counsel for the defence. He also denied that the injuries were increased by him deleberataly or under any coercion. There were number of injuries and he had not increased the injuries on account of pressure of the police and wife of the deceased. So far PW 8 Dr. Siddh Gopal is concerned he had been left wholly uncross-examined by the defence on this aspect. Not a single question was put to him. As to how and in what manner large number of injuries in the post- mortem examination were not found. Only 4 injuries were observed. He was not suggested as to how large number of the injuries noted during the medical examination were absent at the time of conductance of the post-mortem. 6. In view of these facts and circumstances, we find it difficult to establish any compatibility between two medical examination reports. Prima facie we prefer to give credence to the post-mortem examination report. The doctor who conducted the post-mortem examination found 4th, 5th and 6th ribs fractured. Under injuries No. 1 and 2 there was 300 cc blood in the pleural cavity. Right lung, according to him, was lacerated. It was contended by the learned Counsel for the appellants that this lacerated wound is present under the fracture on the left part on the chest and such laceration of the lung is likely to bleed profusely. It is also likely to prevent the deceased from speaking freely. The conflict between the medical examination report during life and the post-mortem report leaves enough to be desired. The very genuineness of the FIR had been questioned by the learned Counsel for the appellants on this account. According to him the deceased would not be able to speak after laceration of the lung. The conflict between the medical examination report during life and the post-mortem report leaves enough to be desired. The very genuineness of the FIR had been questioned by the learned Counsel for the appellants on this account. According to him the deceased would not be able to speak after laceration of the lung. We find ourselves unable to subscribe to the argument made by learned Counsel for the appellants. In our opinion the actual size of the laceration of the wound on the lung is not at all deliberated by the medical officer, PW 8 and in absence of any cross-examination in this regard, it cannot be said that any lacerated wound of this nature on the outer surface of right lung would paralyse the victim i. e. his speech would be completely impeded and thus FIR would not be possibly dictated soon after the occurrence by him. The examination of the statements of PWs 1 and 3 make it clear that this report was transcribed by Brij Mohan on the dictation of the deceased within an hour from the time of the occurrence on 30-11-1980 at 6 a. m. near his house in the west of the well where the deceased had gone for taking bath. This time lag between the injuries and dictation of the FIR was not such that it could have hampered the speech of the victim. The maker of the FIR may have died later at the gate of the Kabir Chaura Hospital, Varanasi. In the statement of PW 6 suggestion given was that the injuries caused to the deceased in the evening can they disappear on the very next day when the post-mortem was conducted. Thus the suggestion is not that the death must likely to occur at some later hour after the sunset. The survival of the victim would not last for 9-12 hours. It was first medical examination by Dr. Ramji Pandey, PW 6, where the victim at the time was conscious. He has come from here to lodge the FIR (PW 3) to the Police Station. The victim was by and large able to speak. His speech will be coherent and audible though may be heading towards feebleness due to pain, agony and weakness. Ramji Pandey, PW 6, where the victim at the time was conscious. He has come from here to lodge the FIR (PW 3) to the Police Station. The victim was by and large able to speak. His speech will be coherent and audible though may be heading towards feebleness due to pain, agony and weakness. From this also it is clear that the victim was in a position to dictate the FIR despite laceration on his right lung and fracture of 3 ribs. In the post-mortem examination it was not narrated as to what was the total area of the said laceration. It seems to be on the outer surface only. No air was coming out and apparently no damage was caused to the inner layer. The damage was superficial. In such a situation it was not possible to infer that the right lung necessarily had collapsed and he was surviving simply on the left lung. It was not possible for the victim to survive so long on left lung alone. As earlier stated there is no evidence that the injury was such that his breathing or speech may become stertous or abnormal. From the post-mortem report except that right lung was lacerated, its precise seat and size was not detailed, we cannot come to any adverse conclusion. This is not permissible from the post-mortem report. It is very difficult to presume any such thing despite a vigorous attempt to this end from learned defence Counsel. Thus, we come to a categorical conclusion that the FIR was the out come of the dictation from the victim himself. 7. Once we accept the FIRs existence on the dictation of the victim Ram Chandra Tewari alias Bhunwar Tewari it is to be treated as a dying declaration. He has nominated in this FIR three persons who specifically have motive. They ae Shambhoo Nath Tiwari, Ambikapathak, Shyam Narayan. According to him, in the case of kidnapping of his daughter Savitri, they were named. It had also come in the FIR that they were pressing him for compromise in the said trial. The evidence of (PW 1) further indicates that monetary position of the deceased was very poor. He was not able to marry his daughter. He had not sold his daughter. She also denied that he deliberately did not send his daughter to her husband and settled her marriage at some other place. The evidence of (PW 1) further indicates that monetary position of the deceased was very poor. He was not able to marry his daughter. He had not sold his daughter. She also denied that he deliberately did not send his daughter to her husband and settled her marriage at some other place. There is no suggestion, it was done for money. 8. We have examined the participation of Vijai Pathak and Kapil Deo Tewari, two persons who had nothing to do with the kidnaping of Savitri. These two persons have already died during the pendency of this appeal. It is clear from the report of CJM concerned that factum of their death is correct. In view of the said fact their appeal stands abated. So far as Shambhoo Nath Tewari is concerned he was attributed Gandasa. No doubt in the case of Ram Chandra Tewari alias Bhunwar Tewari initial medical examination shows injury No. 14 as an incised wound 6 cm x 1 cm x 1. 5 cm on the back of the left arm 4 cm below injury No. 13 on its outer margins. It is common knowledge that blow given by a hard object on bony part may cause an injury while many look like an incised wound. Apart from that in the post- mortem no such injury was found. In this given situation namely disparity in two medical examinations, post- mortem and the initial medical examination case for grant of benefit to this appellant Shambhoo Nath Tewari is made out clearly. In view of the evidence and discussion made above the benefit of doubt is extended to Shambhoo Nath Tewari. He is acquitted of the charge for which he was convicted by the trial Court. 9. Now taking up the case of the three appellant Shyam Narain, Vijai Tewari and Ambika Pathak we find that there was enmity in between these persons and the deceased. Just a day before the occurrence a threat was extend to the deceased to see him by these appellants. We are fully conscious in our mind of their participation in the incident and its probability. According to the post-mortem only one out of four injuries that is injury No. 1 on right side chest has serious internal damage (fracture) of 4th, 5th, and 6th rib on the right side and it also apparently had caused laceration to the right lung. According to the post-mortem only one out of four injuries that is injury No. 1 on right side chest has serious internal damage (fracture) of 4th, 5th, and 6th rib on the right side and it also apparently had caused laceration to the right lung. It ultimately resulted into the death of the victim Ram Chandra alias Bhunwar Tewari. Other injuries were on non-vital parts of his body, hand and left knee. Learned Counsel for the appellants submitted that since the author of this injury No. 1 was not certain it would not be safe to hold these appellants guilty for the offence under Section 302 read with Section 34 IPC. We have already abated the appeal in respect of two appellants, Kapil Deo Tewari and Vijai Pathak who had died during the pendency of this appeal. In view of the number of injuries noted in the post-mortem report and number of injuries noted in the injureds medical report their exist a serious anomaly. In post-mortem report only four injuries were found whereas in his medical report as many as 14 injuries were found. It has not been properly explained by the prosecution. According to PW 6 Dr. Ramji Pandey these injuries cannot disappear in a few hours. Injury No. 1 of the post-mortem report corresponds to injury No. 10 of the medical report. Injury No. 3 similarly is injury No. 1 in the medical report. Injury No. 2 stands compatible to injury No. 4. Rest 9 or 10 injuries do not stand any eventuality of existence. This is clear and loud from the evidence of PW 6 Dr. Ramji Pandey. According to the statements of PW 8 who did the post-mortem examination he did not take any notice of the first information report and medical examination held by Dr. Ramji Pandey (PW 6) while conducting the post-mortem. Thus, he had not denied the probability to this count to treat them as the accused who inflicited only 4 injuries. We cannot take notice of the medical report prepared by PW 6 in the said circumstances. It cannot in the circumstances accepted the deceased suffered such a large number of injuries in this incident as noticed by PW 6. There seems something fishy has occurred at this stage so as to rope in more persons as accused. Such a large number of injuries are not likely to disappear within 8-9 hours. It cannot in the circumstances accepted the deceased suffered such a large number of injuries in this incident as noticed by PW 6. There seems something fishy has occurred at this stage so as to rope in more persons as accused. Such a large number of injuries are not likely to disappear within 8-9 hours. We are of the opinion, that Section 34 is applicable so far as the three appellants are concerned. They have sufficient motive to assault the deceased though they may not have the intention to kill him. A solitary blow on his chest ultimately caused his death who caused it is not discernible from prosecution evidence reliably. 10. Submission of learned Counsel for the appellants that since the author is known of injury No. 1 serious damage would result to the appellants if they are convicted under Section 302 IPC read with Section 34. We find force in the contention. Three persons armed with lathies had assaulted Ram Chandra alias Bhunwar Tewari. Only one injury of the victim proved fatal out of 3 noted in the post- mortem report. In this view of the matter in our opinion for the death of the deceased all the three appellants could not be convicted for intentional homicide. They cannot be said to have the common intention of that person who inflicited the fatal injury. In our opinion the conviction of appellants would be safe and sufficient under Section 304 Part II IPC since two of the injuries were on the non-vital part as noted in the post-mortem report. It is most unsafe to infer that all the three shard the common intention to cause death of Ram Chandra @ Bhunwar Tewari. It is attributable to none in the circumstances. We do not accept the evidence on this point that Shambhoo Nath was the author of the said injury. No one as per post-mortem report made any repetition of any blow on the deceased. In this view of the matter we modify their conviction and sentence them accordingly. We convict these appellants under Section 304 Part II IPC and sentence them to 5 years R. I. We also impose a fine of Rs. 10,000 on each of these appellants, under this count. There is fracture of the left index finger and fracture of the fibula and Tibia. We convict these appellants under Section 304 Part II IPC and sentence them to 5 years R. I. We also impose a fine of Rs. 10,000 on each of these appellants, under this count. There is fracture of the left index finger and fracture of the fibula and Tibia. In this view also appellants are sentenced to three years, R. I. further under Section 325 read with Section 34 IPC. All the sentences were to run concurrently. Their appeal is, therefore, partly allowed. Appellant Shambhoo Nath Tewari is acquitted of the charge of murder. His appeal is allowed. The appellants are to deposit the aforesaid fine within three months from the date a copy of judgment is received. In default of payment of fine all the appellants will undergo further sentence for a period of one and half years. Once the fine is realized Rs. 20,000 from this fine so realized shall be paid to the family of the deceased. Appeal partly allowed. .