M. C. JAIN, J. The appellants Misri Lal and Shri Ram are real brothers who have preferred this appeal against the judgment and order dated 28-9-1981 passed by Sri D. N. Shukla, the then Additional Sessions Judge, Budaun in S. T. No. 375 of 1979. They with one another Janki Prasad were tried before the trial Court for the murder of one Shyam Lal. Charge against appellant Misri Lal was under Section 302 IPC whereas the remaining two were charged under Section 302 IPC read with Section 34 IPC. Janki Prasad was given the benefit of doubt and acquitted. The present two appellants were convicted under Section 302 IPC and 302/34 IPC and sentenced to life imprisonment. 2. The incident had taken place on 22-6-1978 at about 9. 00 p. m. in the house of Shyam Lal deceased in village Nurpur, Police Station Dataganj, District Budaun and FIR was lodged by the victim himself on 23- 6-1978 at 5. 00 a. m. He died later on. The distance of the police station from the place of occurrence was about 10 miles. The prosecution case was that the deceased Shyam Lal was the cousin brother of the appellants living side by side. The house of the Misri Lal was on the back side whereas that of Shyam Lal was on the front side. There was a Neem tree on the front side jointly belonging to them which had been sold for Rs. 250. All the co-sharers had agreed that the amount would be spent for fixing a main new door because the main door was also in jointness. Misri Lal, however, objected to it and wanted his money share in the sale proceeds resulting in quarrel and issuance of threat by him for the murder of Shyam Lal. On the fateful night and time, Shyam Lal was in his bed with a lantern glowing. Misri Lal armed with country made pistol and Shri Ram and Janki Prasad armed with spears reached there abusing and threatening him (complainant Shyam Lal) of murder. On the alarm of the members of the family of the complainant, Prakash and Ram Deen rushed up and saw Misri Lal firing on the complainant and running away with his companions. Ved Ram and Malkhan identified them in the light of torch while they were escaping. Shyam Lal was badly injured. On the alarm of the members of the family of the complainant, Prakash and Ram Deen rushed up and saw Misri Lal firing on the complainant and running away with his companions. Ved Ram and Malkhan identified them in the light of torch while they were escaping. Shyam Lal was badly injured. He got the report of the incident written by Ram Bahadur and thumb marked it. He was taken to the police station by Prakash on a bullock-cart. The report was lodged there. He was rushed to P. H. C. Dataganj, where he was medically examined by Dr. Gurucharan Singh P. W. 7 on 23-6-1978 at 6. 20 a. m. The following injuries were found on his person : (1) Lacerated wound 6 cm x 5 cm x cavity deep over front of abdomen at epigasture region with the contents of abdomen bulging out. (2) Abrasion 3 cm x 2 cm over front of chest at left margin of sternum in middle of it. (3) Abrasion 2 cm x 1 cm over left forearm inner and middle 1/3. (4) Abrasion 3 cm x 1 cm, 3 cm outward to injury No. (3 ). (5) Complains of severe pain in abdomen. Abdomen in tender and distended and peritonitis has set in. 3. Abdomen injury was kept under observation and he was referred to District Hospital Budaun for treatment. Dr. R. P. S. Virk, P. W. 8 operated the victim. He, however, died on 23-6-1978 at 10. 15 p. m. at Clara Swain Mission Hospital, Bareilly. The post-mortem over the dead-body was conducted on 25-6- 1978 at 4. 55 p. m. by Dr. A. K. Pandey P. W. 6. He was aged about 45 years and about 2 days had passed since he died. The doctor found maggots crawling over the body. Abdomen burst was open and 12 stitches were present from intestine to umbilicus with surgical incision. Some pellets were recovered from the body. 4. The investigation was taken up by S. I. Bheem Singh Maurya P. W. 9 who visited the spot, prepared the site plan examined the lantern glowing at the spot and the torches of the witnesses. Inquest was also prepared by him in the hospital (whereafter the dead-body was sent for post-mortem ). 5. The accused pleaded not guilty and claimed false implication due to enmity and suspicion. Inquest was also prepared by him in the hospital (whereafter the dead-body was sent for post-mortem ). 5. The accused pleaded not guilty and claimed false implication due to enmity and suspicion. The prosecution relied upon the testimony of Ram Bahadur P. W. 1. Ram Deen P. W. 2, Rani P. W. 3- wife of the deceased and Ved Ram P. W. 4. Ram Bahadur P. W. 1 was the scribe of the FIR. Ram Deen and Rani were the eye-witnesses. Ved Ram had seen the accused persons running from the spot. The rest consisted of medical evidence and that related to the investigation of the case. 6. The trial Judge found the case doubtful as against Janki Prasad and accordingly acquitted him, but the evidence was found to be firm and clinching as against the present appellants. He, therefore, convicted and sentenced them as stated hereinabove. 7. We have heard Sri B. Sahai from the side of the appellants and Sri A. K. Dwivedi learned A. G. A. from the side of the State. The record has been summoned before us which we have carefully perused. 8. Before proceeding further, the gist of material prosecution evidence may be set forth for proper appreciation. Ram Bahadur P. W. 1 was not an eye-witness but he was the scribe of the FIR which he wrote down at the dictation of the victim Shyam Lal himself. He was at his shop at the relevant time, distance of which has been shown to be 34 paces from the place of the incident in the site-plan prepared by the Investigating Officer. He had heard the shot at his shop and he thereafter, reached the scene, finding Shyam Lal to be injured of shot injury. Shyam Lals wife, Ram Deen, Om Prakash, Ved Ram and Malkhan were found by him there. The FIR was scribed by this witness at the behest of the victim. The prosecution has sought to rely on it as his dying declaration. 9. Ram Deen P. W. 2 is the own brother of the deceased and the cousin of the accused-appellants Misri Lal and Sri Ram. He spoke about the earlier background of joint Neem tree having been sold by Shyam Lal deceased for Rs. 250 which amount he wanted to utilize for fixing a common main door. 9. Ram Deen P. W. 2 is the own brother of the deceased and the cousin of the accused-appellants Misri Lal and Sri Ram. He spoke about the earlier background of joint Neem tree having been sold by Shyam Lal deceased for Rs. 250 which amount he wanted to utilize for fixing a common main door. Misri Lal, accused-appellant, according to him was objecting to it and wanted his share of the sale proceeds to be given to him. According to him, he was an eye-witness of the incident. He had seen the three accused. He was present at his house and had seen the three assailants proceeding towards the house of Shyam Lal with abuses, saying that they would murder Shyam Lal. When they reached the house of Shyam Lal, he also ran up there. They hurled abuses on reaching Shyam Lal who was on a cot. Shri Ram and Janki Prasad exhorted and Misri Lal opened shot on him. Shyam Lals wife raised shouts. Ved Ram and Malkhan also reached there. There was a lantern hung nearby on a wooden peg. Assailants also ran away towards their house scaling the wall in the western side. 10. Rani P. W. 3 is the wife of the deceased who has stated that she was taking her meals near her Kotha at the fateful time. The lantern was hung nearby. Her husband was lying on a cot. The three accused appeared there hurling abuses. Out of them, Misri Lal had tamancha (country-made pistol) whereas Sri Ram and Janki Prasad had spears. Om Prakash and Ram Deen came there running. Sri Ram and Janki Prasad exhorted and Misri Lal opened shot from his country-made pistol on Shyam Lal. They then ran away towards western side. She denied the suggestion that at the time of incident she was not present and had actually gone to her parents place. She also refuted the suggestion that at about 11. 00 p. m. some unknown person shot her husband. 11. Ved Ram P. W. 4 is not an eye-witness, but had allegedly seen the accused-persons running from the side of the house of Shyam Lal. According to him, he and Malkhan were sitting at the shop of Ram Bahadur P. W. 1. He heard the shouts of Shyam Lals wife and also recognized the voice of Misri Lal accused. He and Malkhan ran to that side. According to him, he and Malkhan were sitting at the shop of Ram Bahadur P. W. 1. He heard the shouts of Shyam Lals wife and also recognized the voice of Misri Lal accused. He and Malkhan ran to that side. He had a torch. They heard the shot and proceeding ahead saw Misri Lal, Shri Ram and Janki Prasad running a little ahead from the side of the cot of Shyam Lal. Misri Lal had a country-made pistol whereas Shri Ram and Janki Prasad had spears. All of them ran to the western side. He had allegedly seen them running from a distance of 10 or 15 paces. 12. Having regard to the medical evidence, it admits of no doubt that the deceased was the victim of violence and had received a single fatal shot which ultimately resulted in his death. The place of the incident is also not disputed from the side of the accused-persons from whose side suggestion to Rani P. W. 3 was that it was actually at about 11. 00 p. m. that some unknown person had shot her husband. We note from the cross-examination of the witnesses that the place of incident was not at all disputed from the side of the defence. 13. Now, the first argument of the learned Counsel for the appellants is that the motive assigned by the prosecution was too tenuous. He reasoned that it is incomprehensible that some one would murder his own cousin over the trifle dispute of claiming his share in a paltry sale proceeds of joint tree amounting to Rs. 250 there being several co-sharers. We do not find the argument to be convincing. The motive in fact is locked in the heart of a man. At times, murders are committed over trivial issues. It is an individual difference. One remains calm and unruffled even on suffering huge losses whereas another is driven to extreme criminal action over a trivial dispute and does not hesitate in taking the life of his opponent whom he believes to have dealt with him unjustly and unreasonably. Further, motive loses its significance when there is direct evidence, as is the case here. The argument of the learned Counsel for appellants on the aspect of motive is, therefore, not acceptable. 14. Further, motive loses its significance when there is direct evidence, as is the case here. The argument of the learned Counsel for appellants on the aspect of motive is, therefore, not acceptable. 14. We wish to say here that the FIR having been written by Ram Bahadur P. W. 1 at the behest of the victim Shyam Lal himself has to be treated as his dying declaration and is admissible as such. It has all the attributes of his dying declaration. The trial Judge, in our view, was not justified in ignoring it on the ground that the details given herein bore proof of the fact that it was not even representative of what was told by the injured to the scribe. It has to be kept in mind that the scribe Ram Bahadur P. W. 1 was an uninterested person. He truthfully stated that he reached the scene from his shop after hearing shot. There he found Shyam Lal to be injured of shot injury and wrote down the FIR as he told him. Had he any axe to grind, he could pose himself to be an eye-witness. He did not do anything of the kind. The fact that he received the shot fired by Misri Lal accused- appellant, recited in the FIR written at his behest, was the statement made by him (Shyam Lal) as to the cause of his death. It is admissible under Section 32 (1) of the Indian Evidence Act. Human experience teaches us that the man near his death never speaks lie, barring exceptional cases. Shyam Lal gave out the name of his assailant and the circumstance in which he was injured. A dying man would not meet his maker with a lie in his mouth. The evidence is there that he died in the hospital on 23- 6-1978 at 10. 15 p. m. After the incident, in injured condition he was taken to the police station, then to P. H. C. and thereafter to Clara Swain Mission Hospital, Bareilly where he was operated upon. There is nothing to doubt that he having remained alive after the incident could very well be in a position to get the FIR scribed, disclosing therein the name of his assailant. The injury had been received in the lower part of his body in the region of intestine, not impairing his speech. There is nothing to doubt that he having remained alive after the incident could very well be in a position to get the FIR scribed, disclosing therein the name of his assailant. The injury had been received in the lower part of his body in the region of intestine, not impairing his speech. So, the FIR got written by the deceased is his dying declaration that he received the shot injury of the fire of Misri Lal. True, he named Shri Ram and Janki Prasad as those who were armed with spears and exhorted Misri Lal to open the shot, but having regard to the other evidence these two should be given benefit of doubt as would be discussed a little later. But that aspect does not detract the authencity of the dying declaration so far as the actual shooter Misri Lal is concerned. Therefore, disagreeing with the learned trial Judge, we find that Misri Lal was the actual shooter of the deceased as per his dying declaration. 15. The factum of Misri Lal being the actual shooter is corroborated by the testimony of the deceaseds wife Rani P. W. 3 who was a very natural witness of the incident. The incident took place at the house of the deceased at about 9. 00 p. m. and she must have necessarily been present there. In the month of June, it was obviously dinner time and there is nothing unusual when she says that at the time of the incident she was taking food near her kotha (shown by letter B in the site-plan the distance of which was only three paces from her deceased husband who was on a cot ). We find her statement to be perfectly believable that there was a lantern glowing at a wooden peg nearby. It was quite natural that a glowing lantern was there to facilitate partaking of dinner by her, which indeed, could not be done without light. The investigating Officer had also found the lantern in perfect working condition. She was subjected to searching and lengthy cross-examination but no circumstance could be brought on record to create doubt about her presence there. A mere suggestion that at the time of the incident, she was at her parents house would not be enough to disbelieve her. Learned Counsel for the appellants urged that her name was not there in the FIR. A mere suggestion that at the time of the incident, she was at her parents house would not be enough to disbelieve her. Learned Counsel for the appellants urged that her name was not there in the FIR. It is not possible to accept this contention, because it is there in the FIR that on the shouts of the family members. Om Prakash and Ram Deen had come. Family members necessarily include wife. It is also to be pointed out that Ram Bahadur P. W. 1 scribe, who had reached the spot on hearing shot, though himself not an eye-witness of the incident, stated that Shyam Lals wife was there. The learned Counsel for the appellants also urged that she did not accompany her husband to the police station. We do not think that it was necessary. Other male members had taken him to the police station and for medical treatment. The hapless and illiterate lady could not be expected to run immediately to the police station and hospital when other male members were available to do so. 16. Ram Deen P. W. 2 (brother of the deceased) and Ved Ram P. W. 4 could have reached the spot after the incident all right, but it is difficult to believe that Ram Deen P. W. 2 was himself an eye- witness and Ved Ram P. W. 4 had recognized any of the accused persons while they were running. According to Ram Deen P. W. 2 he was taking food at his house at the relevant time when Misri Lal, Shri Ram and Janki Prasad were going towards the house of Shyam Lal hurling abuses and shouting that they would kill Shyam Lal. He also rushed there. Reaching near Shyam Lal they continued hurling abuses and Misri Lal fired shot on the deceased. We do not think that sufficient opportunity was available for this witness to have reached the spot to witness the incident himself. Ved Ram P. W. 4 is equally unbelievable that he saw the accused- persons running from a distance of 10 or 15 paces. He had come from the shop of Ram Bahadur P. W. 1. It would be recalled that Ram Bahadur P. W. 1 himself could reach the spot only when the assailants had run away. Ved Ram P. W. 4 is equally unbelievable that he saw the accused- persons running from a distance of 10 or 15 paces. He had come from the shop of Ram Bahadur P. W. 1. It would be recalled that Ram Bahadur P. W. 1 himself could reach the spot only when the assailants had run away. The shop of Ram Bahadur P. W. 1 was on the eastern side of the scene of incident and the culprits allegedly ran towards western side. It cannot be appreciated that coming from the eastern side, this witness could recognize the assailants running towards western side and that too from a distance of 10 or 15 paces in night time. So, the testimony of Ram Deen P. W. 2 and Ved Ram P. W. 4 has rightly been rejected by the learned trial Judge. The situation boils down to this that the testimony of eye-witness Rani P. W. 3-wife of deceased the sole most natural witness, tested by cross- examination and corroborated by the dying declaration of the deceased contained in the FIR scribed at his behest proves to the hilt that the actual shooter was Misri Lal accused-appellant. 17. We note that the learned trial Judge acquitted Janki Prasad with the reasoning that he had no motive. He observed that Misri Lal and Shri Ram being brothers could have motive for the commission of the offence, but not Janki Prasad. According to him the possibility of the presence of Shri Ram with his brother Misri Lal for his safety was not open to doubt. He supported his reasoning by observing that according to the report of the police also, all the co-sharers except Misri Lal had agreed to the proposition of the complainant for erecting main door from the sale proceeds of the Neem tree. To our mind, the reasoning adopted by the learned trial Judge to distinguish between the case of Shri Ram and Janki Prasad is like a square peg in a round hole. Both of them were allegedly armed with spears but none was used. It does not have the attraction of logic that they would be there with spears risking evidence to come against them just to make a show. Both of them were allegedly armed with spears but none was used. It does not have the attraction of logic that they would be there with spears risking evidence to come against them just to make a show. Further, the person (Misri Lal) having grudge against Shyam Lal himself being armed with a firearm and determined to take his life hardly needed any exhortation by others to actuate and hasten him to complete the job. It is difficult to believe that for a murder by single shot, the accused would approach the victim hollering abuses loudly in the way. 18. We are in judgment that benefit of doubt deserves to be given to the accused-appellant Shri Ram also having regard to the totality of the evidence analysed in a judicial way. It does not matter at all that the victim named Shri Ram and Janki Prasad also as the accomplices of Misri Lal in his dying declaration. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. The dying declaration of the deceased and the testimony of the eye-witness Rani P. W. 3 taken together in conjunction with attending circumstances having regard to ordinary human conduct prove Misri Lal only to be guilty of the murder of Shyam Lal. 19. In the result, we partly allow this appeal. We maintain the conviction of the accused-appellant Misri Lal under Section 302 IPC and sentence of life imprisonment passed against him. The conviction and sentence passed against accused-appellant Shri Ram is set aside. 20. The accused-appellant Misri Lal is on bail. The Chief Judicial Magistrate, Budaun shall cause him to be arrested and lodged in Jail to serve out the sentence of life imprisonment passed against him. The Chief Judicial Magistrate, Budaun shall send compliance report within two months from the date of the receipt of order. The judgment be certified to the lower Court. Appeal partly allowed. .