Judgment S.L.Kochar, J. ( 1. ) Since both the aforesaid appeals arising out of one and the same judgment, therefore, they are being decided by this common judgment. ( 2. ) The appellants named above have preferred Criminal Appeal No.652/1998 against the judgment dated 30/4/98 passed by the learned IVth Additional Sessions Judge, Dewas in S:T. No.4/96 whereby acquitting all the appellants for the offence punishable under Sections 302, 302/34 of the I.P.C., but convicting them under Section 294 of the I.P.C. and sentencing each of them to suffer simple imprisonment for one month and also convicting appellants Nasir and Shabbir @ Kallu under Section 307 of the I.P.C and appellants Salim and Sardar Bi under Section 307/34 of the I.P.C. and sentencing them each to undergo R.I. for ten years with fine of Rs.1,000/-, in default of payment of fine, to suffer S.I. for two months. The State has filed Criminal Appeal No. 1445/98 against the acquittal of the respondents for offence under Section 302/34 of the I.P.C. ( 3. ) The prosecution case in nut shell as put forth before the Trial Court is that on 4/6/1995, in the night at 9.20 p.m., complainant Haroon Patel(P.W.l) was standing at a betel shop situated on Subhash Chowk, Dewas. Deceased Shabbir son of Babu Khan and witnesses Abid Hussain(P.W.2) and Dayanand Gupta(P.W.3) were also standing near to Haroon Patel. At that moment, appellant Kallu @ Shabbir, Nasir, Sardarbi @ Addi and Salim reached over there in a auto-rickshaw. All started hurling filthy abuses in the name of mother and sister of deceased Shabbir and also assaulted him by an iron rod (Saria). Appellant Kallu @ Shabbir caused injury by choori. Appellant Salim used lathi. After assaulting deceased Shabbir, son of Babu Khan, all the accused persons fled away from the scene of occurrence. The incident was immediately reported to Kotawali Police, Dewas by P.W.I Haroon Patel vide Ex-P/1. The deceased was assaulted by the accused persons on account of some earlier quarrel between younger son of Sardarbi and deceased Shabbir. Deceased Shabbir was taken to Government Hospital, Dewas where he was examined by P.W.7 Dr. Suresh Thakur, who issued M.L.C. report (Ex-P/16). Dr. Thakur on written request by concerned police vide Ex-P/17 recorded dying declaration of deceased Ex-P/18. The deceased was assaulted by the accused persons on account of some earlier quarrel between younger son of Sardarbi and deceased Shabbir. Deceased Shabbir was taken to Government Hospital, Dewas where he was examined by P.W.7 Dr. Suresh Thakur, who issued M.L.C. report (Ex-P/16). Dr. Thakur on written request by concerned police vide Ex-P/17 recorded dying declaration of deceased Ex-P/18. After primary treatment, looking to the serious condition of the deceased, he was immediately referred for further treatment in M.Y. Hospital, Ihdore and from M.Y. Hospital, he was shifted to Private Hospital, Sheik Hatim where deceased died on 5/6/95 early in the morning at 5.40 a.m. The death was reported at Palasia Police Station, Indore where Merg(Ex-P/16) was registered on 5/6/95 at 6.30 p.m. Ramsingh, S.I. (P.W.12) prepared the inquest report(Ex-P/14) and sent the dead body of the deceased for postmortem examination, which was conducted by Dr. Surendra Dubey(P.W.9) in M.Y. Hospital, Indore. The postmortem report is Ex-P/19. The accused persons were arrested and on their disclosure statement, weapons were seized. During the course of investigation, spot map(Ex-P/15) was got prepared by Patwari and the police also prepared spot map, that is, Crime Details Form(Ex-P/2). After completion of investigation, charge-sheet was filed against all the four appellants under Sections 302/34 and 294 of the I.P.C. ( 4. ) The appellants denied the charges and pleaded false implication. They have not examined any witness in defence whereas prosecution has examined in total thirteen witnesses and adduced twenty three documents to prove its case. The learned Trial Court, while acquitting the appellants from the charge under Section 302/34 of the I.P.C, convicted them under Sections 307, 307/34 and 294 of the I.P.C. and sentenced as mentioned here-in-above. ( 5. ) The State has also filed appeal against the a acquittal of the respondents for offence under Section 302/34 0f the I.P.C ( 6. ) We have heard the learned counsel for the parties in both the appeals and also perused the entire record of the Trial Court. ( 7. ) The conviction of the appellants No.l Nasir and No.3 Shabbir @ Kallu under Section 307 of the I.P.C. and appellants No.2 Salim and No.4 Sardarbi @ Addi under Section 307/34 of the I.P.C are based on eye-witnesses account of Haroon Patel(P.W.l), Abid Hussain(P.W.2), Dayanand(P.W.3) and Hanif Mohd.(P.W.5) coupled with medical evidence of Dr. Suresh Thakur(P.W.7) and Dr. Surendra Dubey(P.W.9). ) The conviction of the appellants No.l Nasir and No.3 Shabbir @ Kallu under Section 307 of the I.P.C. and appellants No.2 Salim and No.4 Sardarbi @ Addi under Section 307/34 of the I.P.C are based on eye-witnesses account of Haroon Patel(P.W.l), Abid Hussain(P.W.2), Dayanand(P.W.3) and Hanif Mohd.(P.W.5) coupled with medical evidence of Dr. Suresh Thakur(P.W.7) and Dr. Surendra Dubey(P.W.9). The other witnesses were regarding arrest, seizure, inquest as well as for some formal investigation. Seizure of weapon from the possession of the appellants was not very material because prosecution did not file Forensic Science Laboratory report about presence of blood of deceased on those weapons. ( 8. ) Learned counsel for the appellants has submitted that specific overt acts of appellants Salim and Sardarbi @ Addi have not been corroborated by the medical evidence. The witnesses have stated that Salim was having lathi and Sardarbi @ Addi used an iron rod(Saria), but not a single injury was found by both the doctors on the person of deceased caused by these weapons. The name of appellant Salim is not mentioned in the F.I.R. Learned counsel has also submitted that the trial Court has incorrectly discarded the Dying Declaration(Ex-P/18) recorded by Dr. Suresh Thakur(P.W.7)and in this Dying Declaration, names of appellants Salim and Sardarbi @ Addi are not mentioned. ( 9. ) On the other hand, learned counsel for the State has criticized the impugned judgment on the ground that the learned trial Court have given finding in paragraph 51 that appellants had intention to cause such injuries, which could result into death of the deceased, erred in convicting the appellants under Sections 307 and 307/34 of the I.P.C. The learned Dy. A.G. has also assailed the judgment of the Trial Court regarding discarding the Dying Declaration(Ex-P/18) mainly on the ground that before recording Dying Declaration, doctor has not given certificate of fitness of deceased and also after completion of the Dying Declaration, as well. Learned counsel has also urged that because of the act of the appellants, deceased has died and death was direct result of their act. The question of punishing the appellants for attempt to commit murder under Section 307 of the I.P.C, would not arise and the learned Trial Court has committed grave illegality on this aspect. ( 10. Learned counsel has also urged that because of the act of the appellants, deceased has died and death was direct result of their act. The question of punishing the appellants for attempt to commit murder under Section 307 of the I.P.C, would not arise and the learned Trial Court has committed grave illegality on this aspect. ( 10. ) On scanning of the statement of all the four eye-witnesses Haroon Patel(P.W. 1), Abid Hussain(P.W,2), Dayanand(P.W3) and Hanif Mohd.(P.W.5), it is crystal clear that they are independentwitnesses having absolutely no interest in deceased. Haroon Patel(P.W.l) lodged the report in the Police Station immediately and, in this report, names of three accused Nasir, Shabbir @ Kallu and Sardarbi @ Addi are mentioned. The name of Salim is not mentioned in the F.I.R. and this witness admitted in paragraphs 7 and 8 of his cross-examination that he was not knowing the name of appellant Salim and he came to know his name after two days and he was knowing this appellant by face, but the fact of knowing of the appellant by face is not mentioned in F.I.R.(Ex-P/l) and for this material omission, he has not given any explanation. Apart from this, though other eye-witnesses right from the beginning have stated that appellants Salim and Sardarbi @ Addi assaulted the deceased by lathi and iron rod(Saria), but the deceased did not suffer even a single injury caused by hard and blunt object like lathi or iron rod. ( 11. ) In view of the Supreme Court Judgment rendered in case of "Thaman Kumar Vs. State of Union Territory of Chandigarh ", "Where there is a conflict between the oral testimony and medical evidence and medical evidence is not at all disclosing any kind of injury caused by a particular weapon, it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful" ( 12. ) In the instant case, similar is the situation regarding use of lathi and iron rod for causing injuries to deceased by these two appellants. Therefore, in the considered view of this Court, both these appellants are entitled to get benefit of doubt. ( 13. ) There is another circumstance in favour of appellants Salim and Sardarbi @ Addi, that is, their names are not mentioned in the Dying Declaration(Ex-P/18) recorded by Dr. Suresh Thakur(P.W.7). Therefore, in the considered view of this Court, both these appellants are entitled to get benefit of doubt. ( 13. ) There is another circumstance in favour of appellants Salim and Sardarbi @ Addi, that is, their names are not mentioned in the Dying Declaration(Ex-P/18) recorded by Dr. Suresh Thakur(P.W.7). The learned Trial Court incorrectly discarded this Dying Declaration in paragraph 40 of the judgment on the ground that before . recording dying declaration, doctor has not given certificate of fitness of the deceased and also after completion of the dying declaration, as well. ( 14. ) We have perused the dying declaration as well as the statement of Dr. Suresh Thakur(P.W.7), who has specifically stated that he received letter(Ex-P/ 17) from the concerned Police Station regarding condition of patient for recording of Dying Declaration and also he was asked to record dying declaration. Dr. Suresh Thakur (P.W.7) proved this letter vide Ex-P/17 on which he gave opinion that patient was in a fit condition to give statement and he was fully conscious. After giving this certificate on the letter(Ex-P/17) on 4/6/95, at 9.30 p.m. Dr. Thakur(P.W.7) recorded dying declaration on the same date at 9.35 p.m. just after five minutes and completed the dying declaration on 4/6/95 at 9.45 p.m. The dying declaration(Ex-P/18) is also bearing the signature of Shabbir(deceased) son of Babu Khan at B to B part. Doctor Thakur(P.W.7) has also proved his signature on letter(Ex-P/17) at A to A part and on dying declaration(Ex-P/18) at A to A part. In the Court also Dr. Thakur has specifically stated that patient was in a fit condition to give dying declaration and he was fully conscious. ( 15. ) The Five Judges Constitution Bench of Supreme Court in the case of Laxman Vs. State of Maharashtra considered the reference on two conflicting judgments rendered by two different three Judges Bench in case of "Puparambaka Rosamm Vs. State of Andhra Pradesh" and "Koli Chsunilal Savji Vs. State of Gujarat" In case of "Paparambaka Rosamma Vs. State of Andhra Pradesh", it was held that: "In the absence of a medical certification of doctor about fit state of mind of the deceased to make statement, the dying declaration could not be relied upon" and conflicting view given in case of "Kohli Chuunilal Savji Vs. State of Gujarat" In case of "Paparambaka Rosamma Vs. State of Andhra Pradesh", it was held that: "In the absence of a medical certification of doctor about fit state of mind of the deceased to make statement, the dying declaration could not be relied upon" and conflicting view given in case of "Kohli Chuunilal Savji Vs. State of Gujarat" wherein it is held that: "If the materials on record indicate that the deceased was fully conscious and was capable of making statement, the dying declaration can be relied upon and the same cannot be ignored merely because the doctor had not made the endorsement." ( 16. ) Answering this reference the Supreme Court has held in paragraph 5 as under:- "The Court also in the aforesaid case relied upon the decision of this Court in Harjit Kaur v. State of Punjab wherein the Magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P. (at SCC p. 701, para 8) to the effect that: (in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration.)" has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma V. State of Andhara Pradesh must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji V. State of Gujarat." ( 17. ) In view of the aforesaid declaration of law regarding certificate of fitness of the deceased by the doctor, the Certificate is not necessary if evidence on record is satisfying that the deceased was in a fit condition to give statement. As a matter of fact, in the instant case as discussed here-in-above, there is no dispute that doctor has not given the certificate about the fit condition of the deceased to give statement. On letter(Ex-P/17), the certificate has been given specifically and also proved in the Court by Dr. Suresh Thakur(P.W.7). The learned trial Court has adopted a hypothetical approach that certificate must be on the paper on which statement recorded by the doctor and before recording the statement, certificate must be given and also after completion of statement. In this regard, the learned Trial Court has also failed to understand the legal position enunciated by Apex Court as well as the Hight Court on the question of proof of fitness of deceased at the time of recording of dying declaration. ( 18. ) In this view of the matter, we hold that the learned Trial Court has wrongly discarded the dying declaration(Ex-P/18), which is fully admissible as well as reliable. All the eye witnesses specifically stated that appellants Nasir and Shabbir @ Kallu caused the injuries by choori on abdomen. There is no reason for these independent eye-witnesses to implicate falsely appellants Nasir and Shabbir @ Kallu. The version of all the four eye-witnesses regarding causing of injury by choori, a sharp edged weapon to deceased is fully corroborated by medical evidence of Dr. Suresh Thakur(P.W.7) and Autopsy Surgeon Dr. Surendra Dubey(P.W.9). ( 19. ) The learned Trial Court in paragraph 51 of the impugned judgment has specifically held after discussion of the medical evidence and eye-witnesses account in foregoing paragraph that appellants were having intention to cause such bodily injuries, which could cause death of the deceased. Suresh Thakur(P.W.7) and Autopsy Surgeon Dr. Surendra Dubey(P.W.9). ( 19. ) The learned Trial Court in paragraph 51 of the impugned judgment has specifically held after discussion of the medical evidence and eye-witnesses account in foregoing paragraph that appellants were having intention to cause such bodily injuries, which could cause death of the deceased. The learned trial Court after giving this positive finding, erred in convicting two appellants Nasir and Shabbir @ Kallu under Section 307 of the I.P.C. and appellants Salim and Sardarbi @ Addi under Section 307/34 of the I.P.C. When the person has died because of injuries caused by the accused Nasir and Shabbir @ Kallu their conviction under Section 307 of the I.P.C. attempt to commit murder would not arise. Section 307 of the LP C. reads as under:- 307. Attempt to murder:- "Whoever does any act with suchintention or knowledge, and under such circumstances that, if he by that act accused death, he would be guilty or murder, shall be punished with imprisonment of wither description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned." ( 20. ) The definition of Section 307 of the I.P.C speaks clearly that the person would be liable for attempt to murder only" when the victim would not die. An offence under Section 307 of the I.P.C. is a very serious offence and it requires the same very factors to be proved as are needed to prove an offence under Section 302 of the I.P.C. except that in this case the act falls short of the death of the deceased which is necessary under Section 302 of the I.P.C. ( 21. ) We may draw analogy that if the person is dead, the author of the injuries by which he died cannot be convicted under Section 307 of the I.P.C. on the basis of the following observations made by Supreme Court in case of "Jagtar Singh V. State of Punjab (1993 Vol 99 Cri. Law Journal 2886)" "Originally, there were four accused charged for the murder of the victim Kulwant Singh. The present appellant was one of the four accused. Law Journal 2886)" "Originally, there were four accused charged for the murder of the victim Kulwant Singh. The present appellant was one of the four accused. He was charged for the offence under Section 302, Penal Code[the IPC] as well as under S.307 read with S.34, I.P.C. The rest three accused were charged for the offence under S.302 read with S.34 as well as under S.307 read with S.34, I.P.C. Since the victim was only Kulwant Singh for whose death the accused were charged under S.302, I.P.C. we have not understood the charge framed by the learned Sessions Judge under S.307, IPC also in connection with the same murder. Nor have we followed the conviction of the present appellant under S.307 read with S.34 in addition to his conviction under S.302 of IPC. It further appears that the High Court has not noticed this anomaly in the convictions and sentences both under S.302 and S.307 read with S.34 of the present appellant." ( 22. ) In the case of Jagtar Singh (supra), the Supreme Court has also condemned the framing of charge against the accused persons under Section 307 of the I.P.C. when person is dead. ( 23. ) The learned Trial Court has also committed error of fact in paragraph 51 of the impugned judgment mentioning that deceased died after twenty four hours of the incident. This is not the correct fact. The deceased sustained injury on 4/6/95 at 9.20 p.m. and died as per Merg Intimation Report(Ex-P/16) on 5/6/95, at 5.40 a.m. within nine hours and not after twenty four hours This fact has also been mentioned by the learned trial Court in the impugned judgment last line of paragraph 43. Autopsy Surgeon Dr. Surendra Dubey(P.W.9) in his opinion paragraph 9 has specifically stated that deceased died because of shock and haemorrhage due to injuries sustained by him and time of death was within twenty four hours from the date and time of postmortem, that is, 5/6/95 at 12.45 p.m. Dr. Dubey(P.W.9) proved postmortem report(Ex-P/19). He has also opined specifically in paragraph 7 that injuries were ante mortem in nature and caused by hard and sharp object within twenty hours from the death of deceased. Dr. Surendra Dubey(P.W.9) noted three stab injuries on the left side of the abdomen at iliac fossa region. Underneath this injury peritoneum was cut. The second incised wound was on left hypochondriac region. Dr. Surendra Dubey(P.W.9) noted three stab injuries on the left side of the abdomen at iliac fossa region. Underneath this injury peritoneum was cut. The second incised wound was on left hypochondriac region. This injury had also caused damage to peritoneum and its tissues. The third incised injury was on epigastric region and it damaged the liver and other major blood vessels. Inside abdomen cavity, blood was present. Injury No.4 was incised wound on right index finger and injury No.5 was also incised wound on right index finger. The statement of all the eye-witnesses regarding causing of injuries to deceased by a sharp edged weapon is fully corroborated by the medical evidence. The death was homicidal in nature. ( 24. ) Now we will deal the question of application of Section 34 of the I.P.C. Ordinarily, for common intention of the accused direct evidence is not available and Court has to consider on the basis of the circumstances. In the instant case, in the day time there was a quarrel between the children and in the night time at about 9.20 p.m., when deceased was standing in front of the betel shop in the market, appellants Nasir and Shabbir @ Kallu having choori in their possession reached in an auto-rickshaw. After alighting from auto-rickshaw, they hurled filthy abuse to deceased and, thereafter, wielded a blow by choori causing three serious injuries on vital part of the body, that is, abdomen area and these injuries caused serious damage to the internal organ of the abdomen as discussed herein-above. After causing injuries, they boarded the same auto-rickshaw which was standing and fled away. ( 25. ) In the backdrop of these facts, it can be easily discern that both had common intention to commit murder of deceased and in furtherance of the said common intention assaulted the deceased by choori, a dangerous weapon. ( 26. ) In the case of Nachhettar Vs. State of Punjab (A.I.R. 1976. SC. page 951) paragraph 15. ( 25. ) In the backdrop of these facts, it can be easily discern that both had common intention to commit murder of deceased and in furtherance of the said common intention assaulted the deceased by choori, a dangerous weapon. ( 26. ) In the case of Nachhettar Vs. State of Punjab (A.I.R. 1976. SC. page 951) paragraph 15. the Supreme Court has observed that when prosecution witnesses have described specific overt acts of the accused for causing injury by a particular weapon but same has not corroborated by the medical evidence on the other hand falsifying the ocular version against those accused, in such situation because of this conflict in medical and ocular evidence accused must be entitled for acquittal and cannot be convicted with the aid of Section 34 of the I.P.C. ( 27. ) In view of the foregoing discussion, the Cri.A. No.652/98 filed by the appellants are allowed in part. The conviction and sentence of the appellants Ko.2 Salim and No.4 Sardarbi @ Addi are hereby set aside. They are on bail. Their bail and surety bonds stand discharged. ( 28. ) The Cri.A.No.1445/98 filed by the State against the impugned judgment is also allowed in part. The conviction and sentence against respondents Salim and Sardarbi @ Addi is hereby set aside and against respondents No.l Nasir and respondents No.3 Shabbir @ Kallu is allowed. Both these respondents are convicted under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo R.I. for life. The trial Court is directed to verify whether both these respondents Nasir and Shabbir @ Kallu are still inside the Jail or released after completion of ten years Jail sentence as imposed by the Trial Court. If it is found that both the respondents Nasir and Shabbir @ Kallu have been released by the Jail authority, the learned trial Court is directed to take suitable action against these respondents for their appearance and, thereafter, remanding to Jail custody for serving out the remainder part of the Jail sentence. ( 29. ) Original judgment is retained in Cri.A. No.652/98 and a copy whereof be placed in the record of connected Cri.A. No. 1445/98. Order accordingly.