JUDGMENT 1. - A drunken brawl, a sudden fight, knife stabbing, dying declaration, and eventual death of Sohan Lal @ Sonu, has brought the appellants before this Court. The appellants are challenging the judgment dated 20.6.2002, passed by the Additional Sessions Judge, (Fast Track), No. 1, Jaipur City, whereby the learned Judge has convicted appellant No. 1, Rajkumar @ Rajesh of offence under Section 302 I.P.C. and has convicted appellant No. 2, Shankar of offence under Sections 302/34 I.P.C. and sentenced both of them to Life Imprisonment and has imposed a fine of Rs. 500/- and to further undergo a term of one month of simple imprisonment. 2. In a nutshell the prosecution story is that on 30.7.2000, at around 11:30 A.M., one Lal Singh (PW-12), "Sub-Inspector, Police Station Vidhayakpuri, recorded the statement (Ex.P-15) of one Sohan Lal @ Sonu at Bed No. 40, South Wing, SMS Hospital, Jaipur. Sohan Lal (to be referred to as 'the deceased', for short), made the following statement: On 29.7.2000 at about three to four O'clock in the afternoon, his friend Rajkumar and Shankar were sitting behind the Kalpana Chamber in Gopal Bari and were having drinks. After drinking, a quarrel broke out amongst the three over money. Rajkumar asked him for some money so more liquor could be bought. He refused and the fight ensued. In the fight Shanker helped Rajkumar. I know both of them from earlier times. Rajkumar, with the intention to kill me, struck two knife blows in my stomach. I fell. Thinking that I was dead, Rajkumar told Shankar, let's run away. He is dead'. Then I don't know what happened. 3. This recorded statement was sent to the Police Station through Sepoy Sampat Lal and a formal F.I.R. (Ex.P-19), F.I.R. No. 240/2000, for offence under Section 307 I.P.C. was chalked out. However, during the course of treatment, the deceased underwent a second operation on 17.8.2000, and expired on 23.8.2000. With his death, the offence under Section 302 I.P.C. was added. Eventually, while Rajkumar was charged for offence under Section 302 I.P.C., Shankar was charged for offences under Section 302/34 I.P.C. 4. In order to prove its case, the prosecution examined fifteen witnesses and submitted twenty-five documents. Only Rajkumar examined a single witness, but did not submit any documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellants as aforementioned. 5. Mr. In order to prove its case, the prosecution examined fifteen witnesses and submitted twenty-five documents. Only Rajkumar examined a single witness, but did not submit any documents. After going through the oral and documentary evidence, the learned Judge convicted and sentenced the appellants as aforementioned. 5. Mr. Ram Mohan Sharma and Mr. Komal K. Mathur, the learned Amicus Curiae, have raised a number of contentions before this Court; firstly, but for the' dying declaration of the deceased, there is no other evidence to convict the appellants. Even the statement of deceased (Ex.P-15) and his dying declaration (Ex.P-17) recorded by the Magistrate suffer from lacunae. For, in neither of the two statements, has the deceased given the parentage of the appellants. He merely names them, but does not reveal as to which Rajkumar or Shankar? Moreover, there is no description of the appellants in the either of the two statements. Thus, the appellants have been falsely implicated in this case. Secondly, the occurrence took place suddenly, without any premeditation, and in a drunken state. Thus, the appellant had neither the intention, nor the knowledge that the deceased would die. Thirdly, allegedly the occurrence took place on 29.7.2000, the deceased was operated upon on 29.7.2000, and he was again operated upon on 17.8.2000 and died on 23.8.2000, i.e. almost one month after the alleged occurrence. According to the Post-Mortem Report (henceforth to be referred to as 'the PMR', for short), the cause of death is septicemia, which might have been caused by the negligence of the hospital staff. Hence, there is no live link between the alleged stabbing and the death. The death has not been caused by stabbing, but by the medical negligence of the hospital staff. Therefore, the appellants have been wrongly convicted. 6. On the other hand, Mr, M.L. Goyal, the learned Public Prosecutor, has supported the impugned judgment. According to him, there is sufficient evidence to convict the appellants. Two statements were recorded by the investigation agency the first by the police (Ex.P-15) and the other by a Magistrate (Ex.P-17). Both the statements have been used as dying declaration. The second statement was recorded after getting a certificate from the treating doctor about the mental capacity of the patient to make a statement. There is no contradiction between the two statements. Hence, the learned Judge has rightly relied upon the two statements to convict the appellant. Both the statements have been used as dying declaration. The second statement was recorded after getting a certificate from the treating doctor about the mental capacity of the patient to make a statement. There is no contradiction between the two statements. Hence, the learned Judge has rightly relied upon the two statements to convict the appellant. Secondly, the two operations were required only because the stabbing committed by the appellants injured the deceased. Hence, there is, sufficient live link between the stabbing and the death. 7. We have heard the learned counsels, have perused the impugned judgment and examined the record of the case. 8. A bare perusal of the two statements of the deceased, Ex.P-15 and Ex.P-17 clearly reveal that the deceased had named both the appellants in the statements. Of course, he has neither revealed their parentage, nor described them. But Lal Chand (PW-12) has clearly stated in his testimony that he arrested the appellants on the basis of secret information received from an informer. The appellants have not pleaded that there is any animosity between them and the Investigating Officer. Hence, there is no possibility of false implication by the police. 9. Before the learned trial Court, the appellant No. 1 had pleaded that he is Rajesh but not Rajkumar. However, when the witnesses who testified to their arrest were examined the appellant No. 1 did not suggest to them that he is Rajesh but no Rajkumar. Moreover, as noticed by the learned trial Court, the appellant No. 1 has constantly signed as Rajkumar. Thus, the contention of the learned counsel that they have been falsely implicated is unacceptable. 10. In the case of Ravikumar v. State of T.N., (2006) 9 SCC 240 , the Hon'ble Supreme Court has held that an accused can be convicted on the basis of a dying declaration, provided it is voluntarily made, has not be tutored by the relatives, and the Court is satisfied that the doctor has given the necessary certificate with relation to the mental status of the injured about his/her capacity to make the statement. In the present case, the doctor had given the necessary certificate. It is also not the case of the appellant that the relatives of the deceased tutored the dying declaration. Thus, the dying declaration is a reliable piece of evidence for convicting the appellants. 11. In the present case, the doctor had given the necessary certificate. It is also not the case of the appellant that the relatives of the deceased tutored the dying declaration. Thus, the dying declaration is a reliable piece of evidence for convicting the appellants. 11. However, even if the dying declaration is accepted, it clearly reveals that the appellants and the deceased were friends who were busy drinking. Secondly, the fight had erupted suddenly. "There was no pre-meditation, no sharing of common intention between the appellants to commit the murder of the deceased. At the spur of the moment, in the heat of the moment, in a drunken state, the appellant No. 2 grabbed hold of the deceased and the appellant No. 1 stabbed him in the stomach. Thus, the intention to kill is conspicuously missing. 12. Moreover, the deceased did not die immediately after the incident. In fact, he survived almost a month after the occurrence. Prior to his death, he had undergone two operations. The second operation was done on 17.8.2000 and the deceased expired on 23.8.2000. According to the PMR, the cause of death is septicemia. Therefore, the possibility that septicemia was caused by the negligence of the medical staff cannot be ruled out. But, nonetheless it cannot be said that the cause of the operation was not the stabbing committed by the appellants. 13. In the case of State of M.P. v. Kalu Ram and Another, (2004) 12 SCC 543 , the Hon'ble Supreme Court dealt with a case where there was no previous enmity between the parties, and the death would not have occurred if proper medical treatment were given. In such circumstances, the Apex Court reduced the offence from one under Section 302 I.P.C. to one under Section 304, Part II I.P.C. Similarly, in the present case there was no previous enmity between the deceased and the appellants. Moreover, if proper medical care had been taken, the deceased may not have expired. 14. In such circumstances, the Apex Court reduced the offence from one under Section 302 I.P.C. to one under Section 304, Part II I.P.C. Similarly, in the present case there was no previous enmity between the deceased and the appellants. Moreover, if proper medical care had been taken, the deceased may not have expired. 14. For these reasons, we dispose of instant appeal in the following terms: (i) We partly allow the appeal of appellant Rajkumar @ Rajesh @ Raju and instead of Section 302 I.P.C. we convict him under Section 304 Part II I.P.C. Looking to the fact that the appellant Rajkumar has already undergone confinement of a period of more than six years and four months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. (ii) We partly allow the appeal of appellant Tajy @ Shankar Tapori and instead of Section 302/34, I.P.C., we convict him under Section 304 Part II I.P.C. Looking to the fact that the appellant Taju @ Shankar Tapori has already undergone confinement of a period of more than six years and four months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. (iii) Both the appellants Rajkumar @ Rajesh @ Raju and Taju @ Shankar Tapori, who are in jail, shall be set at liberty forthwith, if not required to be detained in any other case. (iv) The impugned judgment of the learned trial Court stands modified as indicated above. Appeal partly allowed. *******