Judgment ( 1. ) THE appellants No. 2 Rajjak and No. 3 Sheju have challeng their conviction, by filing this appeal, under Section 302 of the IPC and appellants no. 1 and 4 have challenged their conviction, by filing this appeal under Section 302 read with Section 34 of the IPC and sentence of R. I for life and fine of rs. 500/- each, in default of payment of fine additional R. I. for 2 months each and all appellants have been convicted under Section 506 of the IPC 3 months R. 1. each and appellant No. 4 Munna has been convicted under Section 323 of the IPC 3 months R. 1. by judgment passed by learned Sessions Judge, Mandsaur, District mandsaur in Sessions Trial No. 226/1998 dated 8th October, 1999. ( 2. ) ACCORDING to the prosecution case, deceased Shama was resident of Village tigriya, District Mandsaur and was having joint family house in Nayapura, mandsaur town. In the said house, electric connection was in the name of brother salamuddin. Deceased Shama had given electric connection to appellant Abdul rajjak but Abdul Rajjak was not paying electric bill because of which deceased disconnected electric connection. On 06. 09. 1998, in the morning at 8. 00 a. m. , deceased Shama was sitting in front of his house situated in village Tigriya, at that moment appellants reached over there having sword, dhariya and lathis. They all started abusing Shama and also assaulted him by their respective weapons. Deceased was rescued by PW-4 Nahar Khan and PW-10 Akbar Khan. PW-2 raisa Bi, wife of deceased Shama also sustained injury while saving her husband. Nahar Khan and Akbar Khan took deceased Shama to Police Station where he lodged report Ex. P/24. Shama was sent to Govt, hospital, Mandsaur where he remained hospitalized for 10 days and died on 16. 09. 1994. Head Constable PW-12 rambaran Singh commenced investigation and seized blood stained clothes of deceased. He prepared spot map and also arrested the appellants. On disclosure statement made by appellants, dhariya, knife, sword and lathi were seized. Patwari Jaysingh Tomar also prepared spot map Ex. P/17. Assistant Sub Inspector r. CSharma, PW-13 obtained certificate about electric connection Ex. P/20 from PW-11 Sadanand, employee of MP. Electricity Board. He also seized bed head ticket of deceased Shama. First MLC was performed by PW-9 Dr. S. K. Jain vide Ex. P/18. Dr. Patwari Jaysingh Tomar also prepared spot map Ex. P/17. Assistant Sub Inspector r. CSharma, PW-13 obtained certificate about electric connection Ex. P/20 from PW-11 Sadanand, employee of MP. Electricity Board. He also seized bed head ticket of deceased Shama. First MLC was performed by PW-9 Dr. S. K. Jain vide Ex. P/18. Dr. Jain also recorded dying declaration Ex. P/19. Postmortem on the body of deceased was performed by PW-5 Dr. Verma, the report is Ex. P/4. Eye witness PW-2 Raisa Bi was medically examined by PW-14 Dr. S. K. Mehta, her medical report is Ex. P/28. On completion of Investigation, ail the 4 appellants were charge sheeted for commission of offence under Sections 294,506,302,302/34 and 323 of the IPC. ( 3. ) APPELLANTS denied the charges, therefore, put to trial. Appellants have not examined any witness in defence whereas prosecution has examined in all 14 witnesses and adduced 28 documents in evidence. Learned trial court, finding the appellants guilty, convicted and sentence them as indicated here-in-above. ( 4. ) HAVING heard learned counsel for the parties and after perusing the entire record, this court is of the view that prosecution has failed to establish important ingredient as defined under Section 299 of the IPC and thereafter murder as defined under Section 300 of the IPC. ( 5. ) THERE is overwhelming evidence against the appellants for assaulting the deceased and causing injuries by sharp cutting object. The First Information Report ex. P/24 was lodged by the deceased in which names of all the appellants are mentioned clearly coupled with their participation in beating of deceased, but this report cannot be considered as dying declaration as defined under Section 32 (1)of the Evidence Act which reads as under :- ( 5. ) THERE is overwhelming evidence against the appellants for assaulting the deceased and causing injuries by sharp cutting object. The First Information Report ex. P/24 was lodged by the deceased in which names of all the appellants are mentioned clearly coupled with their participation in beating of deceased, but this report cannot be considered as dying declaration as defined under Section 32 (1)of the Evidence Act which reads as under :- "section 32 ;- Cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases :- (1) When it relates to cause of death- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. " ( 6. ) IN case of Imran Khan V/s. State of M. P. 1994 MPLJ 862 the Division bench of this High Court has also observed in this regard as under :- "that the conviction and sentence recorded against the accused was liable to be set aside as the prosecution had failed to establish any case against the accused. Death had not been shown by a chain of causes and effects to be the proximate consequence of the act attributed to the accused. The original injury itself was not of a fatal nature. The casual connection was too remote and the injury on the skull had not been shown to have caused death. Therefore, the statement of the deceased made to her relatives cannot be said to be a statement as to cause of death or as to any of the circumstances which resulted in her death. The evidence of the relatives in that behalf was hearsay and was not relevant under Section 32 (1) of the Evidence Act. Since the prosecution had failed to prove causal connection between the injury and death the alleged dying declaration was not relevant under Section 32 of the Evidence Act. It is fundamental to the provision in Section 32 of the Evidenee Act that there must be death. Since the prosecution had failed to prove causal connection between the injury and death the alleged dying declaration was not relevant under Section 32 of the Evidence Act. It is fundamental to the provision in Section 32 of the Evidenee Act that there must be death. The statement must relate to cause of death or to any of the circumstances of the transaction which resulted in death when the cause of death comes into question. If the deceased is not proved to have died as a result of the injuries received in the incident propounded by the prosecution, her statement can-not be said to be statement as to cause of her death or to any of the circumstances which resulted in her death. ( 7. ) PW-5 Dr. S. L. Verma proved postmortem report Ex. P/4 and gave specific opinion that deceased died because of Hepatitis, he has no where stated in his statement in court as well as in postmortem report that healed injuries found on the person of deceased in any way directly or indirectly contributed for death of deceased. The prosecution has failed to establish that deceased died because of 4 incised injuries caused to him by appellants or these injuries in any way contributed for death of deceased. Deceased died only because of damage to the liver because of disease Hepatitis (B ). The prosecution has filed report Ex. P/23 proved by pw-13 Assistant Sub Inspector R. CSharma. This is the report given by Dr. Ashok sharma, Junior Forensic Specialist, Medico Legal Institute, Bhopal and in the report clear opinion has been given that injuries were not the cause of death. He also opined that during hospitalization, patient had developed some ailment which was not elicited or rectified timely and same culminated into death. Bed head ticket of deceased Shama proved by PW-9 Dr. S. K. Jain is also containing pathology test report wherein hepatitis report was positive i. e. Hbsag (Australia Antigen ). ( 8 ) MEDICO Legal Certificate of injuries sustained by deceased proved by PW-9 dr. S. K. Jain vide Ex. P/18. Dr. Jain found 4 incised injuries on the person of deceased on right side of skull, left shoulder and left fore arm. No opinion was given by dr. Jain about nature of injuries. Dr. ( 8 ) MEDICO Legal Certificate of injuries sustained by deceased proved by PW-9 dr. S. K. Jain vide Ex. P/18. Dr. Jain found 4 incised injuries on the person of deceased on right side of skull, left shoulder and left fore arm. No opinion was given by dr. Jain about nature of injuries. Dr. Jain referred for X-Ray examination of deceased for skull injury and in X-Ray, no bony injury was found, rest 3 injuries were simple in nature as opined by Dr. Jain. Dr. Jain proved dying declaration of deceased vide Ex. P/19. In this statement, deceased has mentioned the names of the appellants who assaulted him by sharp edged weapons. The identity of the appellants is fully established on the basis of dying declaration Ex. P/19, First information Report Ex. P/24 and eye witnesses account given by PW-2 Raisa Bi, pw-3 Babloo, PW-4 Nahar Khan and PW-10 Akbar Khan. As discussed herein-above, statement recorded by PW-9 Dr. Jain Ex. P/19 can not be considered as dying declaration (See Imran Khan V/s. State of M. P. 1994 MPLJ 862 ). ( 9 ) FIRST Information Report Ex. P/24 can not be considered as substantive piece of evidence. It is well settled legal position that FIR can be used only to contradict its author in court and to corroborate the statement given in court and statement recorded by Dr. Jain Ex. P/19 could be used at the most For impeaching the credibility of the statement if deceased would have alive and appeared in court as a witness. Since deceased Shama died because of hepatitis and could not appear in court forgiving statement, both documents Ex. P/24 FIR and Ex. P/19 statements recorded by Dr. Jain are not at all useful in favour of the prosecution. In both documents no statement was given by the deceased in regard to the cause of his death or as to any of the circumstances of transaction which resulted in his death, therefore, same are not admissible as dying declaration under section 32 (1) of the Evidence Act. (See Supreme Court Cases 2008 Vol. 2 SCC (Cri.) 666 Vinay V/s. State of Rajasthan, 2007 Cri. L. J. 1329 Kailash V/s. State of M. P. , 2007 Cri. L. J. 207 Ganesh V/s. State of M. P. ). (See Supreme Court Cases 2008 Vol. 2 SCC (Cri.) 666 Vinay V/s. State of Rajasthan, 2007 Cri. L. J. 1329 Kailash V/s. State of M. P. , 2007 Cri. L. J. 207 Ganesh V/s. State of M. P. ). ( 10 ) NOW the core question for us to decide is as to for which offence appellants would be liable. In view of the injured eye witness EW-2 Raisa Bi and other witnesses PW-3 Babloo PW-4 Nahar Khan and PW-10 Akbar Khan it is proved beyond reasonable doubt that all appellants came together and gave beating to deceased causing 4 incised injuries. As discussed here-in-above all the 4 injuries were simple in nature, therefore, in the opinion of this court appellants would be liable for causing simple injuries by dangerous weapon, punishable under section 324/34 of the IPC. Appellant Munna would also be liable for conviction under Section 3 23 of the IPC, for causing simple injury by hard and blunt object to pw-2 Raisa Bi. MLC report Ex. P/28 of this witness has also been proved by pw-14 Dr. S. K. Mehta. ( 11 ) IN the result, this appeal is allowed in part, conviction and sentence of the appellants under Section 302, 302/34 of the IPC are hereby set aside, instead thereof they are convicted under Section 324/34 of the IPC and sentenced to the period already undergone (6 months) and fine of Rs. 2,500/- to each of the appellants. Conviction and sentence of appellant No. 4 Munna under Section 323 of the IPC and all appellants under Section 506 of the IPC are hereby maintained. All the jail sentences shall run concurrently. Appellants are present in person, they are directed to appear before the trial court on 31st March. 2009 and deposit the fine amount. On realization of fine amount, Rs. 8,000/- be paid as compensation to PW-2 Raisa Bi, wife of deceased. On failure of the appellants to appear on a given date and deposit the fine amount, the Trial Court is directed to take suitable action against them and their surety/sureties, under intimation to this Court. It is made clear that if appellants have already deposited imposed fine of Rs. 500/-, that may be deducted from fine amount of Rs. 2,500/- and each shall deposit only rs. 2,000/- Office is directed to send copy of this judgment alongwith the record to the Trial Court. It is made clear that if appellants have already deposited imposed fine of Rs. 500/-, that may be deducted from fine amount of Rs. 2,500/- and each shall deposit only rs. 2,000/- Office is directed to send copy of this judgment alongwith the record to the Trial Court. Appeal partly allowed. .