( 1 ) APPELLANT m. Raj Narayana @ Raju is the appellant in both the appeals. He is the also sole accused in Sessions Case No. 246 of 1999 on the file of the Metropolitan Sessions Judge, hyderabad. ( 2 ) CHARGE the charge against him is for an offence under Section 302 of Indian Penal Code. ( 3 ) IMPUGNED Judgment the learned Metropolitan Sessions judge found him guilty for an offence punishable under Section 304 Part-ll IPC and sentenced him to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for 3 months. ( 4 ) AGGRIEVED by the same, he preferred two appeals in the High Court. The 1st appeal was filed by M/s. G. Balram and g. Ram Babu, Advocates and it is registered as Criminal Appeal No. 545 of 2000. Thereafter, Mr. R. Satyanarayana and mr. P. Vishnuvardhan Reddy filed another appeal on behalf of the same appellant and the same is also numbered as Criminal Appeal no. 79 of 2002. Thus, two appeals preferred by the same appellant questioning the same judgment are registered and posted for hearing before me and both the appeals are heard together and disposed of together through this judgment. ( 5 ) FACTS briefly stated the case facts are: (1) The deceased Ravi and the accused raju are friends and are jointly doing petty business of selling photo sceneries. (2) The incident occurred on 6-7-1998 at about 8. 00 p. m. near Dilsukhnagar bus stand. (3) While the deceased and the accused were discussing about their business there was a quarrel and the accused took out a butcher s knife and stabbed the deceased on the stomach, head, hand and also on the left leg and on seeing the same, their friend by name Phaninder, P. W. 3, intervened and the accused ran away and thereafter P. W. 3 went to the nearby place to fetch water and in the meanwhile the police constables have seen the injured, took him to the police station and from there to hospital. (4) P. W. 1 one of the police constables gave a police report and on the basis of the same a crime was registered under section 307 IPC and while undergoing treatment the deceased succumbed to the injuries on the next day. (4) P. W. 1 one of the police constables gave a police report and on the basis of the same a crime was registered under section 307 IPC and while undergoing treatment the deceased succumbed to the injuries on the next day. Hence, the section of law was altered to under Sec. 302 IPC and usual investigation like inquest, post-mortem etc. was completed and finally the charge sheet is filed. ( 6 ) EVIDENCE 10 witnesses were examined as P. Ws. 1 to P. W. 10 and 10 documents as Exs. P-1 to p-10 and M. Os. 1 to 3 material objects are also marked at the trial. ( 7 ) ARGUMENTS sri C. Praveen Kumar, the learned counsel appearing for the appellant strongly contended that there is no trustworthy evidence to convict the accused. The learned counsel high-lighted certain portions of the evidence and attacked the impugned judgment by saying that P. W. 3 is a planted witness to depose as eye witness and in fact his presence was not spoken to by the deceased in the dying declarations, thus, the presence of P. W. 3 at the time of offence is doubtful and his evidence is to be rejected in toto. Incidentally the learned counsel had also pointed out that the dying declaration of the deceased recorded by P. W. 9 the police officer marked as Ex. P-7 is to be rejected as there is no endorsement by him that he has satisfied about the mental condition of the deceased at the time of recording the dying declaration. It is stated that the certificate from the doctor is not obtained and thereby the mental condition of deceased is doubtful and there is no record to show that the deceased was in a fit condition to make a statement. It is also strongly contended that as per the evidence on record the deceased is unconscious throughout and in such a case, it is highly impossible and improbable to have a statement from the deceased as in ex. P-7. The learned Additional Public Prosecutor resisted the arguments. ( 8 ) POINT the point for my determination is: whether the appellant stabbed the deceased and is liable for punishment? ( 9 ) THE case of the prosecution rests on the evidence of P. W. 3 and on the dying declaration. (1) There are two dying declarations. P-7. The learned Additional Public Prosecutor resisted the arguments. ( 8 ) POINT the point for my determination is: whether the appellant stabbed the deceased and is liable for punishment? ( 9 ) THE case of the prosecution rests on the evidence of P. W. 3 and on the dying declaration. (1) There are two dying declarations. One is oral and the other is in writing. (2) P. Ws. 1 and 2 are the two police constables and they are not direct witnesses and they are only circumstantial witnesses. But they deposed very important fact that the deceased soon after the incident revealed to them that the appellant stabbed him. It is oral dying declaration first in the point of time before the two independent witnesses who are police constables and this statement is made at the scene of offence soon after the incident. ( 10 ) EVIDENCE of Eye Witness the sole eye witness in the case is P. W. 3. He is a friend of the appellant as well as the deceased. He deposed that the deceased is known to him from childhood and the appellant also is known to him. (1) He narrated the incident as follows:- (2) That he was sitting at the railing of vijayawada bus stand at Dilsukhnagar on 6-7-1998. At about 10p. m. and the accused and the deceased came there and started discussing about their business and in the meanwhile he went to a nearby pan shop, then he heard the deceased and the accused quarrelling raising their voices and thereafter he found the deceased raising cries and the accused stabbing him and he intervened and dragged the deceased, but the accused threatened him and in spite of his dragging he continued to stab the deceased with a knife which is M. O. 1. After stabbing the accused went away on his cycle and the deceased collapsed with injuries. After stabbing the accused went away on his cycle and the deceased collapsed with injuries. The deceased asked for water, then he went to fetch water and on the way he met two persons with whom he has acquaintance and asked them to look after the deceased and went to bring water, and his two friends took the deceased to a nearby temple and two police constables came there and on seeing the injured they took him in an auto- rickshaw to P. S. Malakpet and when he returned back to the temple he found his friends also missing and immediately he telephoned to the house of deceased and informed the elder brother of the deceased about the incident and went away to his house, and on the next morning around 9. 30 a. m. the police came to his house and enquired him and his statement was recorded. In the cross-examination he deposed that there were public at the time of the incident. Some omissions were elicited from him. (3) The important fact to be noted is the deceased did not reveal either the name or the presence of P. W. 3 at the time of the incident in any of his dying declarations. The presence of P. W. 3 is totally silent in the two dying declarations made by the defence. On the basis of 2nd dying declaration (in writing) the case was registered. As per the contents of dying declaration the deceased and the accused alone were present at the time of the incident and the accused picked up a quarrel and beat him with a sharp iron knife and stabbed on the various parts of the body. The said dying declaration also discloses that on seeing his blood the accused ran away and a constable saw him and brought him to osmania General Hospital. (4) Thus, the first truthful version of prosecution is eliminating the presence of p. W. 3. P. W. 3 is no other than the childhood friend of deceased and more so when P. W. 3 intervened to save the life of the deceased. The deceased would not admit his presence at the time of offence. The presence of P. W. 3 at the scene of offence at the time of offence is undoubtedly doubtful in the above circumstance. The deceased would not admit his presence at the time of offence. The presence of P. W. 3 at the scene of offence at the time of offence is undoubtedly doubtful in the above circumstance. (5) Apart from that P. W. 3 did not reveal the incident to the police soon after the incident. Having stated that the deceased was taken to Malakpet Police Station and being a close friend from childhood P. W. 3 is expected to proceed to Malakapet Police station or to the hospital. But he did not do so. On the other he has telephoned to the parents of the deceased and went to his house. The conduct of P. W. 3 of going to his house is heavily commented by the learned counsel for the appellant and the argument is with force that he is hiding the truth. As per the record, P. W. 3, the accused and the deceased are addicted to drugs. That may not be a consideration to reject his evidence, but his conduct in not proceeding to police station soon after the incident to report the matter and his conduct with regard to going home without going to the hospital to enquire about the condition of the deceased creates doubt about his witnessing the incident. (6) Further if he has really intervened there would have been blood on the clothes of P. W. 3 as the deceased sustained bleeding injuries and fell in the pool of blood. There is no whisper about this fact. (7) According to investigator they have traced P. W. 3 next morning when they learnt that he has witnessed the incident. How and who told that he witnessed the incident is silent. (8) P. W. 6 is the father of the deceased and he deposed that at about 10. 20 p. m. he received a phone call from his friend who is p. W. 3 and learnt that the accused stabbed the deceased and police shifted the injured to Osmania General Hospital. (9) An omission was elicited from him about receiving the said information from p. W. 3 over a phone that the accused stabbed the deceased. (10) Under these circumstances, I am not accepting the evidence of P. W. 3 about his witnessing the murder. ( 11 ) dying declaration (1) In the instant case there are two dying declarations. (9) An omission was elicited from him about receiving the said information from p. W. 3 over a phone that the accused stabbed the deceased. (10) Under these circumstances, I am not accepting the evidence of P. W. 3 about his witnessing the murder. ( 11 ) dying declaration (1) In the instant case there are two dying declarations. One is oral and the other is in writing. (2) Oral dying declaration the oral dying declaration is before P. Ws. 1 and 2. They are the police constables. Their evidence discloses that at about 10 p. m. they found the deceased on the road and people gathered there and immediately they went there and found the deceased with bleeding injuries. He was conscious. Then they questioned him and enquire whether he met with any accident. The deceased told them that his friend Raj Narayan stabbed him and ran away. Raj Narayan is no other than the accused. (3) This is the first and foremost statement from the deceased made at the scene of offence soon after the incident. I hold it as a truthful statement as there is no chance for anybody to tutor the deceased. The deceased revealed that how he sustained injuries P. Ws. 1 and 2 have testified that the deceased was conscious at that time but suffering with bleeding injuries. (4) This oral dying declaration is of vital importance fcr more than one reason. Firstly it was made soon afterthe incident at the place of incident, without the intervention of 3rd party. (5)In Dalbir Singh v. State of Punjab the Hon ble Supreme Court clearly held that when a person gives dying declaration shortly after assault when he was lying in a precarious condition, his dying declaration cannot be disbelieved for want of precise description of weapon of assault and precise description of manner in which the injuries were inflicted. The discrepancies are immaterial. A dying declaration suffers from an inherent inconsistency alone is to be rejected. (6)In Somnath v. State of Haryana it is held that dying declaration of a person is the groaning utterances of a dying man, it cannot be a detailed one and to discredit such dying declaration for shortfalls here and there is unnatural and un realist. A dying declaration suffers from an inherent inconsistency alone is to be rejected. (6)In Somnath v. State of Haryana it is held that dying declaration of a person is the groaning utterances of a dying man, it cannot be a detailed one and to discredit such dying declaration for shortfalls here and there is unnatural and un realist. (7)In Jayaraj v. State of Tamil Nadu it is clearly held that the deponent in severe bodily pain is likely not to indulge in detail and he is likely to tell without wasting breath who stabbed him-the brevity of the statement itself guarantees the truth, when the substratum of the dying declaration is fully consistent with ocular account, conviction should follow. (8)Res Gestae section 6 and its succeeding section of the Indian Evidence Act embody the rule of admission of evidence commonly known as res gestae. Acts and declarations accompanying the transaction or the facts in issue are treated as res gestae and are admitted in evidence. It is an exception to the hearsay rule. Section 6 permits proof of collateral statements which are so connected with the fact in issue as to form part of the same transaction. It should be so intimately connected with the fact in issue as to be spontaneous utterance inspired by the excitement of the occasion or a spontaneous reaction thereof, there being no opportunity for deliberately fabricating the statement. The obvious ground of such admission of such evidence is the spontaneity and immediacy of the act or declaration in question. The act deposed must form part of the transaction and must be made contemporaneously with the act or immediately after it. In Sawaldas v. State of Bihar and in B. Nagaraju v. State of A. P. It is clearly held by the Hon ble Supreme court of India that the declaration is admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued. What is admissible under Section 6 of the act is a fact which is connected with the fact in issue as part of the transaction . So statements or declarations or remarks of persons who are eye witnesses or a victim would alone be admissible. What is required to attract the rule of res gestae is spontaneous or immediacy of the transaction without being an opportunity or deliberations or fabrications. So statements or declarations or remarks of persons who are eye witnesses or a victim would alone be admissible. What is required to attract the rule of res gestae is spontaneous or immediacy of the transaction without being an opportunity or deliberations or fabrications. (9) The Concise Oxford Dictionary defines the word spontaneous as acting or done or occurring without external cause. Instigative, automatic, prompted by no motive. Black s Law Dictionary says spontaneous exclamation within res gestae rule is a statement or exclamation made immediately after some exciting occasion by participant or spectator and asserting the circumstances of that occasion as it is observed by him, is admissible as spontaneous and successor response to actual perceptions produced by shock (State-V. Kendrick, 239. Or. 512, 398 p. 2d 471,473 ). (10) Thus, the rule clarifies that whenever there is an exclamation made by a person under the stress of excitement or at the very moment of an event before the mind has an opportunity to contrive a false statement is called res gestae and is admissible in evidence. (11) In the instant case, the deceased is the victim. He is the sufferer to the incident being a victim and he made the statement soon after the incident at the place of incident to P. Ws. 1 and 2 about the incident and this statement of the deceased made to P. W. 1 and 2 are admissible in evidence. (12) Therefore, the statement of the deceased soon after the incident to P. Ws. 1 and 2 are not only admissible in the dying declaration under Section 32 of the Indian evidence Act but also for utmost importance under Section 6 and 7 of the Indian Evidence act res gestae. (13) In my considered opinion, this part of evidence is sufficient to connect the accused with the crime. (14) There was cross-examination on this aspect. In the cross-examination a specific answer was elicited from the witness that they stated before the investigator that the deceased told them soon after the incident as follows:- "mr. Raju and himself came out to dilsukhnagar and he tried to murder him but fortunately he escaped from the hands of Raju otherwise Raju would have been killed him". and the said contradictions are marked as ex. D-1 and Ex. D-2. Raju and himself came out to dilsukhnagar and he tried to murder him but fortunately he escaped from the hands of Raju otherwise Raju would have been killed him". and the said contradictions are marked as ex. D-1 and Ex. D-2. (15) But the fact that the deceased revealing about the cause of injuries is not challenged in the cross-examination. There was no suggestion to P. Ws. 1 and 2 that the deceased did not make any statement to them. On the other it was confirmed from p. W. 1 that the deceased has revealed about the incident in a manner using differentwords. (16) Hence, I hold that the deceased made a oral dying declaration. (17) For the foregoing reasons, I hold that the deceased has made an oral dying declaration before P. Ws. 1 and 2 and there is no reason for P. Ws. 1 and 2 to speak false. ( 12 ) WRITTEN dying Declaratio (1) The evidence of P. Ws. 1 and 2 is further supported and corroborated with ex. P-7 the written dying declaration. It was recorded Iike a report. The Sub-Inspector of police recorded it and registered the case on the basis of this statement under Section 307 i. P. C. and later the law is altered under sec. 302 I. P. C. This report is marked as ex. P-7. The deceased revealed that how he had sustained injuries. The maker of the statement is no more. Therefore, the said statement becomes a dying declaration under section 32 of the Indian Evidence Act. (2) At this stage, it is relevant for me to discuss on dying declaration. The dying declaration must be approached with caution as its maker is not subject to cross- examination, but it does not require corroboration to base conviction. Corroboration is needed only when it is found to have suffered from some infirmity. (2) At this stage, it is relevant for me to discuss on dying declaration. The dying declaration must be approached with caution as its maker is not subject to cross- examination, but it does not require corroboration to base conviction. Corroboration is needed only when it is found to have suffered from some infirmity. The court must in order to test the reliability of a dying declaration, keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light, whether the capacity of the declarant to remember facts stated had not been impaired at the time he was making the statement by circumstances beyond his control either due to the nature of the injuries or for any other cause and whether the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties. In Surat Singh v. State of Punjab it is held that when there are two dying declarations and the second dying declaration is in writing is contained which first dying declaration do not contain it is an infirmity. In Ravi v. State of Orissa and jorubha Juzer Singh v. State of Gujarat the Hon ble Supreme Court has clearly held that when there are two dying declarations made by the victim, one before the constable who took the victim to the dispensary and second before the Magistrate/s. I. of Police and when there is no chance of implication of innocent people exists and when the name of the assailant in both the dying declaration is one and the same the dying declaration does not make unreliable, more so, in the absence of anybody near the deceased to prompt him in that regard and more so when the person to whom the dying declaration is made confirms that the deceased is in a fit state to talk. (3) In the instant case, the deceased made the oral dying declaration before P. Ws. 1 and 2 soon after the incident. P. Ws. 1 and 2 have confirmed that the deceased was in a fit condition to speak. It is P. Ws. 1 and 2 who have shifted the deceased to the police and from there to the hospital and their evidence is most independent, reliable and trustworthy. (4) The conviction can base on the evidence of P. Ws. 1 and 2 alone. 1 and 2 have confirmed that the deceased was in a fit condition to speak. It is P. Ws. 1 and 2 who have shifted the deceased to the police and from there to the hospital and their evidence is most independent, reliable and trustworthy. (4) The conviction can base on the evidence of P. Ws. 1 and 2 alone. Their evidence is further corroborated through ex. P-7 recorded by P. W. 9. In Ex. P-7 the deceased has given some more particulars but the name of the accused and how the incident occurred has been clearly stated by the deceased in the second dying declaration. In the first dying declaration, the short fact that the accused stabbed him is revealed. In my opinion it is a truthful dying declaration. In Jaswant Singh v. State of Delhi the Hon ble Supreme Court has clearly held that a conviction in a murder case can be based on truthful dying declaration made to sub-inspector of police and the parents of the deceased and even though the dying declaration was not recorded by any magistrate, it is not the law to reject the dying declaration made to the police or to the parents. (5) In the instant case, the incident at the scene of offence is established the presence of P. Ws. 1 and 2 is not doubted. The statement of the deceased before P. Ws. 1 and 2 is proved. The death of the deceased because of the stab injuries is established. Thus, the above circumstance clearly establish that it is the accused and the accused alone has stabbed the deceased. (6) The trial Court has given full benefit to the accused by convicting him under section 304 Part-ll I. P. C. through Ex. P-6 the post mortem certificate and the evidence of p. W. 8 clearly establish that the deceased sustained 12 ante-mortem injuries and all of them are incised wounds and they are inflicted with great force as seen through the measurements of the wounds. The intention and knowledge of the accused to commit the offence can easily be drawn from the nature of injuries and the weapon used. At best this case may attract one of the exceptions under section 300 I. P. C. Be it may be I do not find any merits in this appeal and the appeal is liable to be dismissed in toto. At best this case may attract one of the exceptions under section 300 I. P. C. Be it may be I do not find any merits in this appeal and the appeal is liable to be dismissed in toto. In the result, the criminal appeals are dismissed.