JUDGMENT S.L. Kochar, J. 1. By this appeal, the appellants seek quashment of the judgment of conviction and sentence passed by the learned First Addl. Sessions Judge, Shajapur on 24-9-2002 in Sessions Trial No. 179/2001, thereby convicting all the appellants under section 147, Indian Penal Code and sentencing them each to undergo R. I. For two years and to pay a fine of Rs. 5,000/-. In default of payment of fine to suffer additional R. I. for three months, and further convicting the appellants No. 1 Lokendra Singh and Makhansingh respectively under sections 302 and 302/34, Indian Penal Code and sentencing them each to suffer imprisonment for life and to pay a fine of Rs. 50,000/- and in default of payment of fine to suffer further additional R. I. for three years. It was further directed that out of the amount of fine so realised, Rs. 1,00,000/- shall be paid as compensation to the wife or to the issues (if wife is not survived) of the deceased. In case of wife, production of succession certificate was not made essential. 2. Co-accused Ramchandra was also convicted and sentenced by the learned trial Court and he was also arrayed as appellant in the appeal memo. However since Ramchandra expired on 30-5-2004, his name was deleted from the cause-title and the appeal stood abated as against him. 3. In nut-shell the prosecution case as unfolded before the trial Court was that on 23-6-2001 in the evening between 6.00 and 7.00 PM, some sort of dispute took place between the deceased, Himmatsingh and appellant Lokendra Singh on account of sitting of the appellant Lokendra Singh on the platform infront of the house of complainant PW-8 Gulabsingh, brother of deceased Himmatsingh. For the same reason again in the same night at 9.30 PM when Himmatsingh and complainant (PW-8) Gulabsingh were inside their house, all the appellants reached at their house and called Himmatsingh on which Himmatsingh and PW-8 Gulabsingh came out of the house. It is further stated that the appellant Makhan Singh caught hold the deceased Himmatsingh and appellant Lokendra Singh dealt a knife blow which hit on the right side of the abdomen of Himmatsingh. When PW-8 Gulabsingh tried to intervene, the other appellants named Ramchandra and Rambabu caught hold of him and appellant Jagdish and Goverdhan abused them. It is further stated that the appellant Makhan Singh caught hold the deceased Himmatsingh and appellant Lokendra Singh dealt a knife blow which hit on the right side of the abdomen of Himmatsingh. When PW-8 Gulabsingh tried to intervene, the other appellants named Ramchandra and Rambabu caught hold of him and appellant Jagdish and Goverdhan abused them. On the alarm being raised by complainant Gulabsingh, witnesses PW-2 Premsingh, Rajendra Singh (PW-3), reached over there and pacified the dispute. Thereafter, the appellants went away from the place of occurrence. Complainant Gulabsingh (PW-8) took the deceased Himmatsingh to the Police-Out Post Sunera and lodged the FIR Ex. P/14 which was recorded by PW-12 Sub-Inspector Muhabbat Singh. Deceased Himmatsingh was sent for medical examination to the District Hospital, Shajapur where he was first attended by PW-6 Dr. S. D. Jaiswal who found one stab injury near 8th rib (on right side of abdomen). Himmatsingh was admitted in the Surgical Department for treatment. Dr. Jaiswal (PW-6) issued MLC report (Ex. P/10). PW-7 Executive Magistrate Sunil Kumar Jha recorded the Dying-Declaration (Ex. P/13). Investigating Officer PW-12 Muhabbat Singh also recorded the statement of deceased (Ex. P/21) and prepared the spot map Ex. P/22 at the instance of Narayansingh on 24-6-2001. Blood stained and controlled earth were seized through seizure-memo Ex.P/1 in presence of PW-1 Goverdhan Singh and PW-4 Hukumsingh. PW-13 Rajpal Sirohi Head Constable took the FIR from the Out-Post to Police Station Shajapur for registration of crime which was registered as Ex. P/25. On 24-6-2001 Dr. Renu Nayar (PW-14) operated upon the injury of Himmatsingh along with Dr. R. K. Mathur in M. Y. Hospital, Indore. His admission card is Ex. P/27 and treatment/prescription slip is Ex. P/28. Summary History of the patient is Ex. P/29 and the bed head ticket is Ex. P/30. On 8-7-2001 during the course of treatment, Himmatsingh died in the hospital and information to this effect was sent to Police Station Sanyogitaganj, Indore where MERG Ex. P/21 was registered and proceedings of inquest were performed vide Ex. P/16. The dead body was sent for postmortem examination which was performed by Dr. PW-16 Surendra Dube. Postmortem Report is Ex. P/32. The Investigating Officer Muhabbatsingh Raghuvanshi (PW-12) in the presence of witnesses, in pursuance of memorandum statement (Ex. P/7) of accused Lokendra Singh seized the knife and his pant through seizure-memo Ex.P/8. Dr. P/16. The dead body was sent for postmortem examination which was performed by Dr. PW-16 Surendra Dube. Postmortem Report is Ex. P/32. The Investigating Officer Muhabbatsingh Raghuvanshi (PW-12) in the presence of witnesses, in pursuance of memorandum statement (Ex. P/7) of accused Lokendra Singh seized the knife and his pant through seizure-memo Ex.P/8. Dr. PW-6 S. D. Jaiswal, on inspection of the knife gave his opinion Ex. P/12. According to this doctor, the injuries sustained by Himmatsingh could be caused by the seized knife. The seized property was sent to the Forensic Science Laboratory and its report is Ex. P/24. According to the prosecution, incident was also witnessed by PW-9 Ramsingh and PW-11 Ashok. After arrest of the appellant Makhansingh on 23-6-2001, he was also medically examined by PW-6 Dr. Jaiswal who found a lacerated wound on the head of Makhansingh and advised X-Ray. X-Ray report is Ex. P/6 wherein no fracture or any abnormality was detected. According to Dr Jaiswal, the injury sustained by Makhansingh was simple in nature and it could be caused by a fall. 4. After completion of investigation, six appellants were charge-sheeted for the aforementioned offences. The appellants denied the charge. According to the suggestion given to complainant Gulabsingh (PW-8), the defence of the appellants was that when appellant Makhansingh was going on road, he (the witness) and his other brothers had beaten him. The appellant Makhansingh had requested them not to quarrel on trivial issues and this witness PW-8 Gulabsingh tried to assault Makhansingh by knife and in order to save himself when Makhansingh kept himself aside, the blow of knife landed on the person of Himmatsingh. The defence examined witness DW-1 Krishnarao Wagh who proved the Bed-Head Ticket Ex. D/4 and OPD ticket Ex. D/5 of appellant Makhansingh. The defence has also examined PW-6 Dr. S. D. Jaiswal in their defence also. The learned trial Court after trial, on evaluation of evidence adduced by both the parties, convicted and sentenced the appellants as noted hereinabove. 5. Learned counsel for the appellants Shri Vikas Yadava submitted that no case is made out against appellants No. 2 to 6. They had not caused any injury to the deceased. In the Dying-declaration Ex. P/13, recorded by the Executive Magistrate PW-7 Shri Sunil Jha, names of appellants Lokendra Singh and Makhan Singh and one Banwari s/o Shivnarayan Bairagi are mentioned. Learned counsel for the appellants Shri Vikas Yadava submitted that no case is made out against appellants No. 2 to 6. They had not caused any injury to the deceased. In the Dying-declaration Ex. P/13, recorded by the Executive Magistrate PW-7 Shri Sunil Jha, names of appellants Lokendra Singh and Makhan Singh and one Banwari s/o Shivnarayan Bairagi are mentioned. The names of other appellants do not find place therein and even the deceased did not disclose about presence of some other known or unknown persons. In this Dying-declaration, fatal blow by knife is attributed to appellant No. 1 Lokendra Singh. Against Makhansingh, no allegation of catching hold of the deceased or taking part in any manner is made. Name of one Banwari s/o Shivnarayan is mentioned in the Dying-declaration Ex. P/13, but he was not made accused. The deceased had also disclose in this Dying-Declaration (Ex. P/13) that the dispute arose between him and appellant Lokendra Singh on account of sitting of appellants Lokendra Singh, Makhan Singh and one Banwari on the platform situated infront of the house of deceased. It is also mentioned in the Dying-declaration that the deceased was brought to the hospital by Mukesh Shivhare and his brother Gulabsingh. 6. Learned counsel for the appellant has submitted that the story of presence and participation of appellants No. 2, 4, 5 and 6 was developed later on and almost all the family members of the appellants have been implicated. He further submitted that against Makhansingh deceased did not level any overt act and it appears that the incident took place in the same transaction and not as stated by PW-8 Gulabsingh. According to Dying-declaration (Ex. P/13), the date and time of incident is 23-6-2001 in the evening/night between 8.30 and 8.45 PM whereas according to the First Information Report time of incident is shown at 9.30 PM. Learned counsel also submitted that the deceased suffered only one injury and died after 15 days in the hospital. There was no previous enmity between the deceased and the appellants. Therefore, the case against the appellant No. 1 Lokendrasingh at the most would fall within the province of section 304 (Part I or II) Indian Penal Code and remaining of the appellants deserve to be acquitted. Learned counsel has not disputed the homicidal death of Himmatsingh. 7. There was no previous enmity between the deceased and the appellants. Therefore, the case against the appellant No. 1 Lokendrasingh at the most would fall within the province of section 304 (Part I or II) Indian Penal Code and remaining of the appellants deserve to be acquitted. Learned counsel has not disputed the homicidal death of Himmatsingh. 7. On the other hand, learned Public Prosecutor Shri Nevalkar appearing for the State submitted that though the deceased suffered only one injury, but looking to the part of the body and nature of injury, the blow was given by the appellant No. 1 with intent to commit murder of deceased Himmatsingh and he was effectively facilitated by the remaining appellants. Therefore, they have been rightly convicted and sentenced by the learned trial Court. 8. Having heard learned counsel for the parties and after perusing the entire record, we are of the opinion that the story of presence and participation of the appellants except appellant No. 1 Lokendra Singh was a later development of the complainant party. 9. The dying-declaration of deceased (Ex. P/13) was recorded immediately by the Executive Magistrate PW-7 Shri Sunil Kumar Jha in presence of Dr. PW-6 S. D. Jaiswal, who before recording of the dying-declaration and after completion thereof, certified that the deceased was conscious and able to give statement. Deceased Himmat Singh had put his signature on the dying-declaration (Ex.P/13) which was recorded in the presence of two witnesses namely, Govind and Mukesh Shivhare. The learned trial Court discussed the entire evidence of recording of Ex. P/13 and the statement of the deceased by Police (Ex. P/21) in paras 66 to 73 and placed reliance on both the dying declarations (Ex. P/13 and Ex. P/21). 10. In the statement recorded by the Investigating Officer Muhabbatsingh Raghuvanshi (PW-12), names of all the appellants find place. This statement Ex. P/21 was recorded on 23-6-2001 at 23.45 O'clock (11.45 PM). Thereafter his dying-declaration (Ex. P/13) was commenced from 12.30 AM on 24-6-2001 and completed at 12.38 PM on that day. In the dying-declaration (Ex. P/13) the names of all the appellants are not mentioned except Lokendra Singh and Makhansingh. This shows that the statement of the deceased recorded by the Sub-Inspector Muhabbatsingh (PW-12) was in the line of FIR (Ex. P/14) lodged by Gulabsingh (PW-8), brother of the deceased. In this report, the names of all the appellants are mentioned. In the dying-declaration (Ex. P/13) the names of all the appellants are not mentioned except Lokendra Singh and Makhansingh. This shows that the statement of the deceased recorded by the Sub-Inspector Muhabbatsingh (PW-12) was in the line of FIR (Ex. P/14) lodged by Gulabsingh (PW-8), brother of the deceased. In this report, the names of all the appellants are mentioned. The allegation is only against appellant No. 1 Lokendra Singh for causing solitary knife-blow and against other appellants, the allegations levelled are of catching hold of the deceased and hurling abuse. 11. The dying-declaration (Ex. P/13) has been recorded by the Executive Magistrate Shri Sunil Jha (PW-7) in the presence of witnesses, namely Govind and Mukesh Shivhare. This dying declaration (Ex. P/13) has been recorded by the Executive Magistrate after recording of the statement of the deceased by the Investigating Officer Muhabbat Singh Raghuvanshi (PW-12) i.e. (Ex. P/21). Thus, Ex. P/13 was recorded later in point of time. The Executive Magistrate and the doctor who gave certificate of fitness of the patient to give statement are independent witnesses and their testimony has to be given preference. 12. We have given our careful and anxious consideration to both the dying declarations and the statements of PW-3 Rajendra Singh, PW-8 Gulabsingh, PW-9 Ramsingh and PW-11 Ashok along with the medical evidence of PW-6 Dr. S. D. Jaiswal and the autopsy surgeon PW-16 Dr. Surendra Dube and are of the opinion that at the time of the incident infront of the door of deceased only three persons were sitting and they were the appellant No. 1 Lokendra Singh, appellant No. 3 Makhansingh and one Banwari s/o Shivanarayan. The incident took place between 8.30 and 8.45 PM when the appellant Lokendra Singh, Makhansingh and Banwari were sitting infront of the house of deceased on a platform. It was objected by the deceased upon which verbal altercation took place between them and during the course of verbal quarrel, appellant No. 1 dealt a solitary knife-blow which landed on the right side of the abdomen of Himmatsingh. Later on, the accused persons have been added in the FIR by the complainant Gulabsingh (PW-8), implicating almost all the male members of one family and divided the incident into two parts, whereas according to Ex. P/13 (dying-declaration) incident occurred at one point of time, 13. The contents of the dying declaration of deceased (Ex. Later on, the accused persons have been added in the FIR by the complainant Gulabsingh (PW-8), implicating almost all the male members of one family and divided the incident into two parts, whereas according to Ex. P/13 (dying-declaration) incident occurred at one point of time, 13. The contents of the dying declaration of deceased (Ex. P/13) are also clearly demonstrating the fact that appellant Makhansingh and one Banwari were though present with Lokendrasingh, but they did not take active part especially for causing injury by Lokendrasingh to Himmatsingh by knife. It appears that the incident occurred all of a sudden and without premeditation and in a heat of passion, on a spur of moment, appellant No. 1 Lokandra Singh dealt a solitary blow by knife without aiming at any particular part of the body of the deceased, but the same unfortunately fell on the right side of abdomen damaging the liver and sternum bone of the deceased. Deceased was admitted in the M. Y. Hospital, Indore where he was operated upon and treated. Unfortunately, he succumbed to the infection developed during the course of treatment. 14. PW-16 Dr. Dube found near about 400 ML pus inside the abdomen of Himmatsingh and mentioned especially in para 16 of his deposition that because of pus formation, there was respiratory and heart failure. He further stated that the same had occurred because of the injury. In para 14, this witness also stated that after operation, drainage tube was fitted in the operated wound for draining out the pus and if this tube would have properly washed every day, it would have functioned rightly and there would not have been the collection of 400 ML pus. The Autopsy-Surgeon in paras 8 and 9 of his deposition, opined that the injury could be caused by hard and sharp object and the same was sufficient in the ordinary course of nature to cause death. He also opined that the heart and respiratory failure was the result of injury to liver. 15. It would be apposite to mention here that PW-16 Dr. Dube found two external injuries on the person of Himmatsingh. Injury No. 1 was a contusion on the left hand and No. 2 was on left side of abdomen which was operated upon and there was surgical drainage wound at the left side of abdomen. On initial examination by PW-6 Dr. Dube found two external injuries on the person of Himmatsingh. Injury No. 1 was a contusion on the left hand and No. 2 was on left side of abdomen which was operated upon and there was surgical drainage wound at the left side of abdomen. On initial examination by PW-6 Dr. S. D. Jaiswal, contusion on the left hand was not noted and this injury did not cause any damage to the internal organ. Dr Jaiswal (PW-6) might have missed due to oversight and he concentrated on fatal injury on abdomen and thus, he could not note injury No. 1. In the dying-declaration (Ex. P/13), the deceased has nowhere attributed injury No. 1 to any of the accused and the eye-witnesses have also not stated anything about sustaining of injury No. 1, the contusion which was simple in nature caused by any of the appellants. 16. Dr. PW-6 S. D. Jaiswal was also examined by the defence to show that appellant Makhansingh also sustained injury in the incident. Dr. Jaiswal examined Makhansingh and found lacerated would on left forehead. It was simple in nature and could be caused by a fall. DW-1 Krishnarao Wagh has also been examined to prove the Bed-Head ticket and Out Patient Door Ticket Ex. D/4 and D/5 respectively. Injuries sustained by Makhansingh are of no consequence because he has not pleaded the defence of acting in self defence. 17. In view of the foregoing legal and factual analysis of evidentiary material available on record, we are of the opinion that no case is made out worth for maintaining the conviction of the appellants No. 2 to 5. Therefore, then-conviction and sentence for the offences with which they have been charged are liable to be set aside. The conviction and sentence of appellant No. 1 Lokendra Singh for the offence punishable under sections 302 and 147 Indian Penal Code also are liable to be set aside. Instead, he is found guilty of causing solitary knife injury in a sudden fight in a heat of passion and on a spur of moment without premeditation and without taking undue advantage, which is an offence falling within the purview of section 300 (Exception 4), culpable homicide not amounting to murder, punishable under section 104 (Part I) Indian Penal Code (See : Ghappu Yadav v. State of M.P., AIR 2003 SC 1620 ). 18. 18. In the result, this appeal is allowed in part. The conviction and sentence of the appellants Makhan Singh and Lokendra Singh under sections 302/34 and 302, Indian Penal Code respectively and section 147, Indian Penal Code are set aside. Appellant Makhansingh thus, stands acquitted from those offences. However, appellant No. 1 Lokendra Singh is sentenced to suffer R. I. For eight (8) years and to pay a fine of Rs. 55,000/- for the offence under section 304 (Part I) Indian Penal Code. In default of payment of fine, he shall suffer additional R. I. for three years. The appellants Goverdhansingh, Rambabu and Jagdish are acquitted from the charge under section 147, Indian Penal Code. The amount of fine, if recovered or realized from appellants No. 2 to 5 shall be refunded to them by the trial Court. Out of the amount of fine so realized or recovered from appellant Lokendra Singh, Rs. 50,000/- shall be paid as compensation to the legal heirs of deceased Himmatsingh. All the appellants except appellant Lokendra Singh, are on bail. Their bail bonds shall stand discharged. 19. Let a copy of this judgment along with the record of the learned trial Court be sent immediately to that Court for compliance.