JUDGMENT Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 26.2.1992, passed by Vth Additional Sessions luge, Bhopal, in Sessions Trial No. 309/91, convicting appellant No.1 under section 302, IPC and appellant No.2 under section 302/34, IPC and sentencing them to imprisonment for life, with fine Rs. 1,000/- each, in default whereof to, further imprisonment for 6 months. 2. The facts of the case are that Idris (deceased) was running a failoring shop near Aishbagh Stadium, Bhopal. On 14.5.1991, at about 11.30 a.m., appellant Raju, alongwith his brother Aziz, went to his shop and complained that the zip of his pant which he had repaired, had again gone out of order and asked him to stitch a new zip. When Idris told him that he would get it done by evening, Raju lost his temper and after abusing him, asked him to replace it at once. Idris protested and asked him to refrain from indulging in abusive language whereupon Raju whipped out a Chhuri and inflicted a blow on him which landed on his hand. Both got entangled in scuffle. Appellant Aziz pushed Idris whereby he fell down after colliding with a chair. Aziz exhorted Raju by saying "mar sale ko", then Raju inflicted blow on his chest. Thereafter, on the hue and cry of Rashid, Mohd. Raees and Asif, both of them ran away. Asif, a friend of Idris, took him to Hamidia Hospital in an auto. At Hamidia Hospital, KK Bhargav, Sub-Inspector of Police Station Jahangirabad, recorded Dehati Nalishi, Ex. P-15. on the information given by Idris. 3. On receiving information. Station House Officer R.K Puri (PW 14) also reached the hospital and recorded statement of Idris under section 161, CrPC. Sub-Inspector K.K. Bhargav went to fetch Magistrate for recording dying declaration, but by the time he could bring the Magistrate to Hamidia Hospital, Idris was taken in the operation theatre. 4. Sub-Inspector KK Bhargav, on coming back to police station, registered the case under section 307/34, IPC against the appellants and recorded the first information report. He went to the spot, prepared spot map. seized blood-stained earth and some articles from the shop of Idris along-with the pants which was sought to be repaired and was the cause of quarrel. On the same day, appellants were arrested and Idris also died at 17:50 hours on the same day in the hospital. He went to the spot, prepared spot map. seized blood-stained earth and some articles from the shop of Idris along-with the pants which was sought to be repaired and was the cause of quarrel. On the same day, appellants were arrested and Idris also died at 17:50 hours on the same day in the hospital. The offence was converted to section 302 IPC. 5. When Idris was alive, his injuries were examined by Dr. A.K Singh (PW 5), who found: 1. Incised wound 4 cm lateral to sternum right side second intercostals space 2 cm x 1/2 cm with sub coetaneous emphysema around the wound: 2. Fraction/abrasion over right shin of leg; 3. Lacerated wound over base of left index finger." His report is Ex. P-4. He sent the patient to operation theatre for thorectomy. On opening the chest, a tear of 5 cm was found on the anterior surface upper lobe of right lung. Pleural cavity was full of clotted blood. In his opinion, the injury was caused by sharp weapon. 6. After death, dead body of Idris was sent for post-mortem examination. Dr. D.K Satpathi (PW 11), Prof. of Medico Legal Institute, Bhopal, performed the post-mortem examination and found one stitched stab wound on his right chest. According to him, the deceased had died due to cardio respiratory failure as a result of stab injury caused by hard and sharp object. Duration of death was found 24 hours. The death was homicidal in nature. 7. After investigation, charge-sheet was filed and the case was committed for trial. Trial Court framed the charge under section 302, IPC against Raju @ Mohd. Ayaz @ Riyaz and under section 302/34, IPC against Aziz. Accused abjured their guilt. 8. To bring home the charge against the accused, prosecution examined 14 witnesses. Case mainly rested on the evidence of eye-witnesses, viz. Shahvar (PW 2), Mahfooz Ali Khan (PW 6), Asif (PW 9), Rashid (PW 10), and Mohd. Raees (PW 12) and the evidence of PW 13 KK Bhargav, Sub-Inspector, who recorded Dehati Nalishi, Ex. P-15, on the statement made by deceased. 9. None of the aforesaid eye-witnesses supported the prosecution case at the trial and turned hostile. However, on appreciation of the evidence and material on record, learned trial Judge held the appellants guilty and convicted and sentenced them as mentioned earlier. 10. P-15, on the statement made by deceased. 9. None of the aforesaid eye-witnesses supported the prosecution case at the trial and turned hostile. However, on appreciation of the evidence and material on record, learned trial Judge held the appellants guilty and convicted and sentenced them as mentioned earlier. 10. On going through the evidence of Shahvar, Mahfooz Ali Khan, Asif, Rashid and Mohd. Raees, it is apparent that none of them has named the appellants as assailant or made any incriminating statement against them. 11. PW 14 R.K. Puri, Station House Officer of Police Station, Jahangirabad had received information through wireless about the incident whereupon he had sent K.K. Bhargav, Sub-Inspector to Hamidia Hospital and after some time, he himself reached there. He had found Idris fully conscious, mentally alert and capable of giving his statement. PW 13 K.K. Bhargav has deposed that while he was on law and order duty, he had received the message on wireless set that there had been a stabbing near Aishbagh Stadium and injured Mohd. Idris had been taken to Hamidia Hospital. He had gone to Hamidia Hospital and had obtained Pre-MLC report from the doctor. Idris was admitted in Ward No.5 of the hospital where Dr. A.K. Singh had told him that patient was conscious and was in a position to give his statement. Then he had recorded Dehati Nalishi, Ex. P-15 on his dictation. The aforesaid Dehati Nalishi was signed by Idris as well as by K.K. Bhargav. After recording the first information report. K.K. Bhargav had gone to collect Magistrate-Mr. N.K. Sharma, but by the time, he could come back to the hospital, Idris had been taken to operation theatre, so, his dying declaration could not be recorded by the Magistrate. On the basis of the aforesaid Dehati Nalishi, the first information report, Ex. P. 16 was prepared at the police station, K.K. Bhargav further deposed that on the same day at about 7:50, he received information from Hamidia Hospital that Idris had expired. Then he had converted the offence from section 307 to 302, IPC. 12. PW 2 Shahvar. PW 9 Asif and PW 10 Rashid, the said eye witnesses, have all turned hostile and have not lent support to prosecution. However, from their otherwise helpless testimony it still clearly transpires that Idris had fallen victim to outward violence and the medical evidence of PW 5 Dr. 12. PW 2 Shahvar. PW 9 Asif and PW 10 Rashid, the said eye witnesses, have all turned hostile and have not lent support to prosecution. However, from their otherwise helpless testimony it still clearly transpires that Idris had fallen victim to outward violence and the medical evidence of PW 5 Dr. A.K. Singh who examined him when alive and PW 11 Dr. D. K. Satpathi who performed his autopsy undoubtedly establishes his homicidal death due to chest injury causing Cardio-Respiratory failure. . 13. This brings the pertinent question to the fore as to who was the author of the fatal injury to Idris, putting end to his life. With non-cooperation of the aforesaid eye witnesses we are now left only with the evidence of the dying declaration Ex. P-15 of Idris. recorded as Dehati Nalishi in Hamidia Hospital by SI Police K.K. Bhargav. We have now to see whether it has been duly proved and whether it is reliable. PW 13 K,K. Bhargav, who gets full support from PW 14 R.K. Puri (SO), has testified that he had taken down the Oehati Nalishi Ex. P-15, as told by Idris who was then conscious, mentally alert and was in condition to speak. Apparently, he had no grudge or animosity against the accused to writei down an untrue Oehati Nalishi in order to implicate them falsely. Conscious: state of Idris and his condition to speak has been proved by PW 5 Dr. A.K. Singh also who had examined his injuries. Thus, there appears no reason to disbelieve the Oehati Nalishi of Idris which later became his dying declaration on his death. It is hence, in our opinion, not only duly proved but is also admissible in evidence and reliable too and goes t prove beyond a reasonable doubt that it was the appellant Raju who ha dealt the chest injury to Idris which proved fatal. 14. As respect appellant Aziz, who is the brother of appellant Raju, his case rests on a different footing. 14. As respect appellant Aziz, who is the brother of appellant Raju, his case rests on a different footing. It is apparently reasonable that no victim of a grievous or a fatal injury would substitute his real assailant by another person, and this pinpoints the guilt on the appellant Raju, but such victim may, however, be tempted to add falsely one or more of the relations of the assailants out of revengeful attitude, as the human nature is, and also with intent to handicap him from family support in the prospective case. This is common experience in criminal matters where even innocent family members and friends are falsely named as provocateurs or abettors by the aggrieved. Furthermore, it transpires from the evident of PW 5 Dr. A.K. Singh that Idris had spoken to him, limiting his accusation to only one person. Inevitably, this too gives rise to a serious doubt about the complicity of appellant Aziz in the crime. From the circumstances, as discussed, the guilt does not appear to have been brought home to hi and he is consequently entitled to benefit of doubt. 15. Keeping in view the genesis in which the occurrence took place and the surrounding circumstances, it does not appear that appellant Raju had intended to commit murder of the deceased. Altercation with the deceased was at the spur of the moment and totally lacked premeditation. However, at any rate, when he wielded a weapon like chhuri and gave blow on his chest, a vital part of the body, he would quite reasonably b attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty 0 committing offence under section 304 Part II of IPC. In view of the above discussion, we are of the view that appellant Raju is liable to be punished for the offence under section 304, Part II, of IPC and not under section 302, IPC. Accordingly, his appeal is partly allowed. Conviction of appellant Raju @ Mohammad Ayaz @ Riyaz under section 302, IPC is set aside and instead he is convicted under section 304, Part II, IPC and is sentenced to RI for 7 years. The appellant Aziz is found not guilty of the offence of section 302/34, IPC, his appeal is allowed and he is acquitted of the charge on benefit of doubt. The appellant Aziz is found not guilty of the offence of section 302/34, IPC, his appeal is allowed and he is acquitted of the charge on benefit of doubt. Raju @ Mohd. Ayaz @ Riyaz is on bail. He shall surrender to bail bonds for undergoing the remaining part of his sentence.