JUDGMENT : (1) Criminal appeal no. 1945/2004 and criminal appeal no. 2268/2004 arise out of the same judgment, therefore, they are being disposed of by the common judgment. (2) These criminal appeals under section 374 (2) cr. P. C. Have been preferred being aggrieved by the judgment, finding and sentence passed by iv additional sessions judge, jabalpur in s. T. No. 429/2003 decided on 09. 11. 2004, whereby the appellants have been convicted under section 304 part - 2 of i. P. C. And sentenced to r. I. For 10 years with fine of rs. 2,000/ - each in default of payment of fine r. I. For 3 months. (3) The prosecution case in short is that on 24. 04. 2003 savitri bai was sleeping outside of her house situated at village padwar kala. Her son issilal patel and daughter - in - law uma bai were sleeping on roof. At about 4 a. M. Girdhari lal, narayan kachhi and krishna kumar came there armed with baka, knife and lathi respectively and assaulted her. On her cries her son and daughter - in - law came there. The accused persons ran away. She sustained the injuries at her cheek, abdomen and hand. She lodged the report at police station gohalpur on the same date at 7:30 a. M. Crime no. 295/03 under section 323, 324, 294 and 506 - b, 34 of i. P. C. Was registered against the accused persons. She was sent for medical examination. Her medical examination was done. She sent to victoria hospital, jabalpur from where referred to medical college, jabalpur and on the next day she died. Inquest report was prepared. Her body was sent for postmortem examination, which was conducted by dr. Suresh kumar nigam (pw - 11). He opined that cause of death was shock due to haemorrhage from liver. The offence under section 302 i. P. C. Was added. Map was prepared. Blood stained clothes of the deceased were seized. The disclosure statements of the accused persons were recorded and the weapons of offence were recovered. They were arrested. The statements were recorded. The seized articles were referred to f. S. L., sagar. After completing the investigation charge sheet was filed in the court of j. M. F. C., jabalpur wherein criminal case no. 529/2003 was registered who committed it to sessions court on 07. 07. 2003 for trial. They were arrested. The statements were recorded. The seized articles were referred to f. S. L., sagar. After completing the investigation charge sheet was filed in the court of j. M. F. C., jabalpur wherein criminal case no. 529/2003 was registered who committed it to sessions court on 07. 07. 2003 for trial. (4) Accused persons were charged under section 302 of i. P. C. To the effect that on 24. 04. 2003 at 4:00 a. M. At village padwar kala, jabalpur committed murder by intentionally (or knowingly) causing the death of savitri bai and thereby committed an offence punishable under section 302 of I. P. C. They abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as many as 13 witnesses and the defence also examined 5 witnesses. After appreciating the evidence trial court did not found them guilty under section 302 of i. P. C. But found guilty under section 304 part - 2 of i. P. C. And convicted and sentenced thereunder as stated hereinabove in para no. 2 of the judgment. Being aggrieved by the judgment, finding and sentence, instant appeal has been preferred on the grounds mentioned in the memo of appeal. (5) Learned counsel for appellants submitted that savitri bai was unconscious and not in a position to lodge the report hence f. I. R. Is doubtful. There was no source of light hence she could not have identified the assailants. Issilal patel (pw - 4) was not present at his house at the time of incident. The statement of uma bai was not recorded under section 161 of cr. P. C. There are several contradictions and omissions in their statements therefore their evidence ought not to have been relied upon. The trial court has not appreciated the evidence in the proper perspective. Shri ghanshyam pandey, learned counsel for the appellant - girdhari lal further submitted that narayan kachhi is responsible for causing fatal blow. No common intention with narayan has been proved therefore only the offence under section 324 of i. P. C. Be made out against him. He is 56 years of age and suffering from leg problem. He has already served out the sentence more than 4 years therefore he be released on the sentence already undergone. No common intention with narayan has been proved therefore only the offence under section 324 of i. P. C. Be made out against him. He is 56 years of age and suffering from leg problem. He has already served out the sentence more than 4 years therefore he be released on the sentence already undergone. Shri p. C. Lodhi, learned counsel for the appellant - narayan kachhi has also further submitted that the report was lodged against narayan lodhi whereas the present appellant is narayan kachhi. The trial court has not considered the defence version properly because at that time this appellant was not at his house but has gone to bhantalaiya at his friend's house to attend chowk ceremony. He has served sentence of 4 years like girdhari lal therefore he should be released on the sentence already undergone. (6) On the other hand, shri a. L. Patel, learned g. A. Appearing on behalf of respondent/state submitted that issilal patel (pw - 4) and uma bai (pw - 6) were sleeping at the roof of house at the time of incident. They have witnessed the incident. Source of light was from the electric bulb installed at the electric pole. Prosecution has proved the case beyond reasonable doubt against the appellants and have rightly been convicted and sentenced hence does not call for any interference. (7) The main point for consideration in these appeals is that whether the trial court has committed any illegality in convicting and sentencing the appellants under section 304 part - 2 of i. P. C. ? (8) F. I. R. (ex. P/19) has been lodged by savitri bai herself which was recorded by r. S. Rajput (pw - 12). He has proved this report by deposing that savitri bai lodged such report regarding causing injuries to her by inflicting baka and knife blow by these appellants. Issilal patel (pw - 4) has also stated that the report was lodged by his mother savitri bai which contains her thumb impression. (9) Dr. Mrs. S. Sen (pw - 10) has medically examined smt. Savitri bai on 24. 04. 2003 at 8:50 a. M. And found 3 incised wounds as detailed in medical report ex. P/17. No any question has been asked to this witness whether savitri bai was in a position to speak or not. (9) Dr. Mrs. S. Sen (pw - 10) has medically examined smt. Savitri bai on 24. 04. 2003 at 8:50 a. M. And found 3 incised wounds as detailed in medical report ex. P/17. No any question has been asked to this witness whether savitri bai was in a position to speak or not. According to her opinion two incised wounds found on the right side of her face were simple in nature but the incised wound which was found on the right middle abdomen was grievous in nature. No any question has been asked on behalf of appellants to this witness whether savitri bai might have become unconscious on account of injuries sustained by her. Issilal patel (pw - 4) and uma bai (pw - 6) both have not admitted the fact that savitri bai was unconscious at that time. No doubt summer singh (pw - 1) who has been declared hostile has admitted in cross - examination that savitri bai was unconscious and some defence witnesses like bhagwandas patel (dw2) and kasturilal patel (dw - 4) have also deposed in the same manner. But their evidence cannot be accepted because injuries were not of such nature that she might have become unconscious at the spot. Moreover she lodged the report wherein specifically mentioned causing of injuries by these appellants. R. S. Rajput (pw - 12) has specifically stated that he has written the report as lodged by savitri bai. No medical opinion has been brought on record that savitri bai was not in a position to speak due to the effects of these injuries. On the contrary, it has been established by prosecution evidence that she was fully conscious and lodged the report ex. P/19. Learned counsel has placed reliance on the decision rendered in the case of state of m. P. V. Nanhebhaiya and others, 1991 (2) c. Cr. J. Noc 1 but the same is of no assistance as this case is quite distinguishable on facts. (10) Under section 114 of evidence act the court may presume existence of certain facts. According to section 114 (e) of the evidence act it may be presumed that juridical and official acts have been performed regularly. The report ex. P/19 was lodged by savitri bai and after her death it has become her dying declaration. (11) The evidence has been brought on record regarding source of light. According to section 114 (e) of the evidence act it may be presumed that juridical and official acts have been performed regularly. The report ex. P/19 was lodged by savitri bai and after her death it has become her dying declaration. (11) The evidence has been brought on record regarding source of light. Issilal patel (pw - 4) has stated that electric bulb was there where his mother was sleeping. The bulb was on in the courtyard of house. He has denied the suggestion that the night was dark. Uma bai (pw - 6) has also stated that there was light in her house. There was one electric bulb connection in her house which was on at that time. So both these witnesses have given the evidence that electric bulb was on at that time. No doubt in map ex. P/6 such fact is not mentioned by r. S. Rajput (pw - 12) but he has deposed that electric bulb was there emitting light. (12) On the contrary, natthulal (dw - 1) has stated that there was no light in house of savitri bai. However, he has admitted that the electric pole is installed in front of her house. Kasturi lal patel (dw - 4) has also admitted in cross examination that electric pole is installed out side of the house. So it becomes clear that there is electric pole in front of the house of issilal patel (pw - 4). Issilal patel (pw - 4) and uma bai (pw - 6) both have stated that one electric bulb was on at that time. To disprove this fact appellants ought to have produced the record from electricity department that there was no such electric connection in their house. In absence of it the evidence of these witnesses cannot be said to be unreliable on this point. (13) The evidence has also been adduced whether the night was dark or moonlight. Both the parties have adduced the evidence in this regard. Issilal patel (pw - 4) has stated that it was moonlight night whereas pandit anil vedanti (dw - 4) has deposed that on the day of incident there was ? ashtami? of ? krishnapaksh?. However, he has admitted that the moon was visualized in the night of ?ashtami?. He has further admitted that known persons can be identified by their shape, size, language, walking and talking. ashtami? of ? krishnapaksh?. However, he has admitted that the moon was visualized in the night of ?ashtami?. He has further admitted that known persons can be identified by their shape, size, language, walking and talking. (14) As the incident is of near about 4:00 a. M. And hence it can very well be said that there was moon in the sky at that time. The accused persons were well acquainted with savitri bai because they are the residents of the same village therefore there was no reason as to why she could not have identified the appellants. Moreover there was also source of light hence she could have well identified her assailants. (15) In the light of the foregoing discussions, contention of the learned counsel for appellants is not acceptable that f. I. R. Was doubtful and savitri bai could not have identified the appellants due to darkness. (16) It is established principle of law that dying declaration if trustworthy and reliable is sufficient to convict the appellants. No further corroboration is required. Enmity is a double edged weapon. If on account of the enmity, there is possibility of falsely implicating the appellants then the possibility of causing injuries by them for the same account cannot be ruled out. There was no reason to falsely implicate the appellants by savitri bai. There was no reason to save the real assailants and involve the innocent one. Therefore, the dying declaration of savitri bai is trustworthy and reliable. (17) Seeta bai (pw - 5) who is the daughter of the deceased savitri bai has also deposed that her mother told her that the appellants have inflicted knife blow to her. Thus this is the oral dying declaration made by savitri bai to her daughter. (18) Apart from dying declaration, there is also the eye witness account. Issilal patel (pw - 4) and uma bai (pw - 6) have clearly deposed that on hearing the cries of savitri bai they saw that the appellants were inflicting baka and knife blows to her. The injuries were sustained by her in her cheek, stomach and hand. Issilal patel (pw - 4) has deposed that his mother died on account of knife injury caused to her in abdomen. (19) The contention of the learned counsel for the appellants is that issilal patel (pw - 4) has not witnessed the incident. The injuries were sustained by her in her cheek, stomach and hand. Issilal patel (pw - 4) has deposed that his mother died on account of knife injury caused to her in abdomen. (19) The contention of the learned counsel for the appellants is that issilal patel (pw - 4) has not witnessed the incident. No doubt he has admitted that he has gone to village bihariya from where he returned in the morning but keeping in view the entire evidence given by him it is manifestly clear that he has witnessed this incident. Moreover the presence of uma bai (pw - 6) the wife of issilal patel (pw - 4) is not doubtful at the time of incident who has clearly stated regarding causing injuries to her mother - in - law savitri bai by these appellants. (20) The argument has been advanced on behalf of appellants that police did not record her statement during investigation but the argument is not acceptable for the simple reason that ex. D/2 is her police statement which was recorded during the course of investigation. Her evidence is against the appellants. Her presence can not be doubted in any manner in her house. (21) In addition to dying declaration and eye witness account the case of prosecution is further based on the circumstantial evidence of disclosure statements given by the appellants and recovery of the weapons in consequence thereof. (22) Arvind dahke (pw - 13) has clearly deposed that memorandum statements ex. P/8 and ex. P/10 of appellants girdhari lal and narayan kachhi were recorded and knife and baka were seized from them vide seizure memo ex. P/11 and ex. P/13 and were arrested vide arrest memo ex. P/14 and ex. P/16. No doubt harilal (pw - 7) the witness of these documents have not supported the prosecution case but there is no reason to disbelieve the statement of arvind dahke (pw - 13). Thus this fact is proved that the weapons of offence were recovered at the instance of disclosure statements given by appellants. (23) The argument has been put forth on behalf of learned counsel for the narayan kachhi that he is kachhi and not lodhi by caste. Therefore he has been implicated in place of narayan lodhi. Thus this fact is proved that the weapons of offence were recovered at the instance of disclosure statements given by appellants. (23) The argument has been put forth on behalf of learned counsel for the narayan kachhi that he is kachhi and not lodhi by caste. Therefore he has been implicated in place of narayan lodhi. (24) R. S. Rajput (pw - 12) has given the evidence in this regard that he has written narayan kachhi in f. I. R. Ex. P/19 and has not written narayan lodhi. However, he has admitted that there is overwriting on b to b part in ex. P/19. (25) On perusal of f. I. R. Ex. P/19 narayan kachhi is clearly mentioned on the first page but on reverse side some overwriting has been made in caste but that may be due to slip of pen in writing. There is eye witness account in the case wherein issilal patel (pw - 4) and uma bai (pw - 6) have clearly stated in their evidence that narayan kachhi inflicted knife blow so there is no misidentity of this appellant and hence argument of the learned counsel for the appellant in this behalf is not acceptable. (26) The evidence has been brought on record on behalf of the appellant narayan kachhi that he was not in the village at the time of incident. He has gone to attend ?chowk? ceremony held at bhantalaiya in his friend?s house. The evidence of bhagwandas (dw - 2) and ram (dw - 3) have been adduced in this behalf. But their evidence is not acceptable for the simple reason that there was no reason to stay of this appellant at his friend?s house because there may be several guests and the distance of his village was not far away therefrom. There was no any occasion to stay at night. The plea of alibi taken by this appellant is not acceptable. There is ample evidence against him that he participated in commission of this crime and played an important role in causing death of savitri bai. The trial court has rightly not accepted the defence version and has not committed any illegality in accepting the prosecution evidence. No infirmity or perversity is found in the findings arrived at by trial court and hence same is hereby affirmed. The trial court has rightly not accepted the defence version and has not committed any illegality in accepting the prosecution evidence. No infirmity or perversity is found in the findings arrived at by trial court and hence same is hereby affirmed. (27) So far as the sentence is concerned, learned counsel for the appellants submitted that the appellants have suffered the jail sentence near about 4 years, therefore, they should be released on the period already undergone. They have placed the reliance on the decisions rendered in the case of chavda jivanji chelaji and others v. State of gujarat (2002) 9 scc 576, bhojappa hanamanthappa choudannavar and others v. State of karnataka, (2004) 10 scc 177 and salim sahab v. State of m. P. (2007) 1 scc 699 . (28) So far as the present case is concerned, it is manifestly clear that a lady was assaulted at night in her house by 3 accused persons having armed with baka, knife and lathi. They inflicted injuries to her by these weapons. It is not a case of sudden quarrel but the case of premeditation making concert plan to commit this offence. The report was lodged promptly. She was medically examined, sent to victoria hospital from where referred to medical college, jabalpur. She died on the next day due to the injury of liver caused by hard and sharp object. There was enmity of deceased with girdhari lal. On account of such enmity he and his co - associates have committed this crime. (29) Keeping in view all the surrounding circumstances of the case, sentence awarded is not excessive hence it does not call for any interference. The appeals are meritless which deserve to be dismissed. Consequently, both the appeals fail and are hereby dismissed accordingly.