JUDGMENT : A.L. Dave, J. In an incident that had occurred on 19.7.1992 at about 19.15 hrs. at Hudco Society at Bagasara of Vadia taluka of Amreli district one Kalusha Abdula Fakir was allegedly done to death by Bichhubhai Rambhai Kathi (the present appellant) by inflicting multiple blows with knife (dagger) after giving abuses to the deceased. The incident was seen by number of persons. FIR was lodged by Dadibu Abdulsha Fakir (PW 10), who happens to be the mother of the deceased with Bagasara Police Station on the basis of which an offence was registered and the case was investigated. During the course of investigation, dying declaration of the deceased was recorded by Executive Magistrate. The statements of relevant witnesses were recorded and Panchnamas were drawn. At the conclusion of investigation, the investigating agency found that there was ample evidence to connect the accused with the offence and, therefore, chargesheet was filed before the JMFC, Bagasara, who in turn committed the case to the Court of Sessions at Amreli as the offences were exclusively triable by Sessions Court and it was registered as Sessions Case No. 107 of 1992 in Sessions Court at Amreli. The charge was framed against the accused appellant for the offences punishable under sections 504 and 302 of IPC and section 135 of the Bombay Police Act. The accused pleaded not guilty to the charge and claimed to be tried. 2. After considering the evidence led by the prosecution, the Trial Court came to the conclusion that offences punishable under section 302 of IPC and section 135 of Bombay Police Act were duly proved by the prosecution and, therefore, convicted the accused appellant for the said two offences, whereas acquitted him of the offence punishable under section 405 of IPC. For the offences punishable under section 302 the Trial Court ordered the accused-appellant to undergo imprisonment for life and for the offences punishable under section 135 of the Bombay Police Act, the Trial Court sentenced him to undergo R.I. for six months. The sentences were ordered to run concurrently and benefit of set-off was given. The judgment and order was pronounced on 24.6.2002. The accused is aggrieved by the said judgment and order and, hence, this appeal. 3. Ms. The sentences were ordered to run concurrently and benefit of set-off was given. The judgment and order was pronounced on 24.6.2002. The accused is aggrieved by the said judgment and order and, hence, this appeal. 3. Ms. Sudha Gangwar, learned Advocate for the appellant submitted that the prosecution evidence is not sufficient to show that there was an intention to kill on the part of the appellant. He had no motive either to commit murder of the deceased. The conviction is based mainly on dying declaration before the Executive Magistrate which is not reliable. She submitted that from the evidence of the doctor who gave an endorsement of the patient being conscious to give dying declaration, it is clear that he had given certificate without clinical examination of the deceased patient. He only looked at him and issued certificate about consciousness and fit state of mind of the patient. Dying declaration before the Executive Magistrate, therefore, would be rendered unreliable. 4. Ms. Gangwar further submitted that most of the witnesses who have deposed before the Court have not supported the case of the prosecution. Even otherwise they are relatives of the deceased victim and are, therefore, interested witnesses. 5. Ms. Gangwar therefore submitted that the appeal may be allowed and the conviction by the Trial Court may be set aside. 6. By way of an alternative submission, Ms. Gangwar submitted that if the Court comes to the conclusion that the evidence is sufficient to show involvement of the appellant, the case may be treated as a case falling under definition of culpable homicide not amounting to murder, as there was no intention on the part of the appellant to cause death of the deceased and that there was no motive for the appellant to commit such a crime. That the incident erupted suddenly and in the heat of passion, the assault was made. She further submitted that the conviction therefore be altered from one punishable under section 302 to one punishable under section 304 Part-II. 7. Mr. D.C. Sejpal, learned APP. has opposed the appeal. According to him, the conviction is well founded. He submitted that there are as many as four dying declarations, out of which one is before the Executive Magistrate. There are two oral dying declarations, the first one before the mother of the deceased Dadubi and the second one is before his sister. D.C. Sejpal, learned APP. has opposed the appeal. According to him, the conviction is well founded. He submitted that there are as many as four dying declarations, out of which one is before the Executive Magistrate. There are two oral dying declarations, the first one before the mother of the deceased Dadubi and the second one is before his sister. The third dying declaration is by way of history given to the doctor. All these dying declarations are consistently involving the appellant with the offence. The learned APP has submitted that the manner in which the incident occurred would show that the appellant had a big knife with him, which can better be called as dagger and he used this knife for causing death of the victim by inflicting multiple blows. The injuries were caused on vital part of the body of the deceased to ensure that the deceased succumbs to the injury unfailingly. The conviction is therefore well founded. Reacting to the alternative submission Mr. Sejpal submitted that there is very little evidence to show that there was no meditation, that there was a sudden quarrel, that there was sudden fight, and that the appellant did not take advantage of the situation and did not act in a cruel manner. He submitted that the evidence is sufficient to show that at least the appellant acted in a cruel manner and took advantage of the situation and that he attacked an unarmed person without any rhyme or reason with the help of a knife in the evening hours. He therefore submitted that the appeal may be dismissed. 8. We have examined the record and proceedings in the context of rival submissions. 9. It is true that the involvement of the appellant is held by the Trial Court mainly on the basis of the dying declaration made by the deceased. That dying declaration is at Exh.32. In that dying declaration the deceased has stated in terms that Bichhubhai Darbar had inflicted more than two knife blows on him. One in the stomach, one in the chest and one each on the right and left hands and one in the lower abdomen. In the dying declaration, he has also stated that while he was going home after having pan at Ravjibhai's shop he was attacked by Bichhubhai and he did not know the reason for the assault. One in the stomach, one in the chest and one each on the right and left hands and one in the lower abdomen. In the dying declaration, he has also stated that while he was going home after having pan at Ravjibhai's shop he was attacked by Bichhubhai and he did not know the reason for the assault. He has, of course, added, thereafter, that no one else was present at the time of the incident. The appellant used to pass by his house in a drunken condition and, therefore, he had asked Bichhubhai not to do so. Barring that there was no dispute or quarrel with Bichhubhai i.e. the appellant. This dying declaration was recorded on 19.7.1992 between 11.00 and 11.30 hrs. There is an endorsement by the doctor to the effect that dying declaration was taken in his absence and that the patient was fully conscious. This aspect is deposed by the Executive Magistrate Pravinbhai Kalyanbhai Bhayani, Exh.30. He says that he received yadi from police. He went to Civil Hospital, got in touch with the doctor, inquired about the condition of the patient and the doctor told him that the patient was conscious and that he might record the statement. Thereafter, he recorded the statement of the patient which is at Exh.32. He has also been cross examined on the question of condition of the declarant and he says that the doctor was present throughout when the statement was recorded. The witness during cross examination has not yielded to the cross examination and has firmly indicated that the statement was recorded as was told by the declarant. 10. Certifying doctor is examined by the prosecution at Exh.36. He is doctor Savjibhai M. Sidhpara. He states that he had examined Kalubhai at 9.30 a.m. on 19.7.1992 and then he describes the injuries on the person of the deceased. He deposed that Exh.32 was recorded in his presence and he had put his endorsement about conscious state of mind of the declarant. He has been cross examined at length. He admits in para 11 that he had certified that the patient was conscious and fit to give dying declaration but had not made such an endorsement in the beginning of the dying declaration. He says that he had made endorsement upon Exh.32 about conscious state of the patient and that he had done so after clinically examining the patient. He admits in para 11 that he had certified that the patient was conscious and fit to give dying declaration but had not made such an endorsement in the beginning of the dying declaration. He says that he had made endorsement upon Exh.32 about conscious state of the patient and that he had done so after clinically examining the patient. He also states that he had given a certificate to this effect. 11. The ultimate outcome of these pieces of evidence is that the dying declaration was recorded by the Executive Magistrate after following the requisite procedure. He had taken opinion of the doctor, who, in turn gave the opinion after clinically examining the patient and then dying declaration was recorded. The Doctor and the Executive Magistrate are two independent officials and they have no axe to grind against him. They have been tested on the touch stone of cross examination and it has to be recorded that no doubt is left about genuineness of recording of the dying declaration. 12. Similarly the second principle of truthfulness is also required to be applied to the dying declaration. In this context, whatever is stated by the patient gets corroborated by the other contemporaneous material. The declarant has stated that he was assaulted with a knife and that is proved by the medical evidence. The patient has stated that he was attacked with a knife and gave him more than two blows, one in stomach, one each on right and left hands, and one in the abdomen. These injuries were found by Dr. Savjibhai when he examined the patient (Exh.36). Similarly it transpires from evidence of Dr. Savjibhai that when he visited the patient, he gave history that Bichhubhai had caused the injury. This would be an oral dying declaration before the doctor, which the doctor had reduced into writing as case history in the medical case papers and deposed to that effect in his ocular evidence. The version that is given in the oral dying declaration thus gets corroborated and passes the test of truthfulness. In such a situation, when there is no reason to doubt that dying declaration which clearly implicates the appellant, the Trial Court was justified in acting upon it. 13. Apart from the dying declaration Exh. 32 before the Executive Magistrate, there is oral dying declaration before Dadibu, mother of the deceased at Exh. In such a situation, when there is no reason to doubt that dying declaration which clearly implicates the appellant, the Trial Court was justified in acting upon it. 13. Apart from the dying declaration Exh. 32 before the Executive Magistrate, there is oral dying declaration before Dadibu, mother of the deceased at Exh. 26 and Hanifabu, sister of the deceased at Exh. 27, who both have deposed to the effect that deceased told them that the appellant had assaulted him. Thus, involvement of the appellant in the incident and causing injury to the deceased with knife are established through dying declaration before the Executive Magistrate, oral dying declarations before the mother and the sister as also through the oral dying declaration before the doctor, who had, at the relevant time, reduced the same into writing in the case papers. 14. Even the report of the Serologist clearly shows that the weapon as well as clothes of the appellant were stained with blood of the blood group of the deceased. It is not the case of the appellant that his blood group is the same as that of the deceased nor is it a case that he had suffered some injuries in the incident and his clothes were stained with the blood on that account. The report of the Serologist, therefore, again establishes link between the incident and the accused. 15. Now comes the question whether the appellant had or not an intention to kill. The intention is a mental phenomena and there can hardly be any evidence to indicate the intention, but the same can be read or inferred from the conduct of the person/accused. In the instant case, the appellant met the deceased. When the appellant met the deceased the appellant was armed with knife. The knife is not an ordinary domestic knife. It is more or less a dagger rather than the knife because the size of the sheath is 12 inches which was covering the blade. The size of the blade is 12 inches. The injuries were caused on vital parts of the body and the death occurred because of the injury. The weapon used and the number of blows given to the deceased would clearly indicate the intention of the author of the injuries. There was no need to use such a deadly weapon in the first instance. The injuries were caused on vital parts of the body and the death occurred because of the injury. The weapon used and the number of blows given to the deceased would clearly indicate the intention of the author of the injuries. There was no need to use such a deadly weapon in the first instance. There was no need to use the weapon with such a force and when the blows were given on vital parts of the human body, the intention was obvious. Therefore, it is not possible to accept the contention that there was no intention to kill. 16. Apart from the intention aspect, a contention was raised that exception 4 to section 300 would be attracted. In this context, if the evidence is seen, Hanifabu, the sister of the victim states that she learnt about a quarrel having taken between the deceased and the appellant. Barring this stray sentence there is no other evidence to show that there was a sudden quarrel. There is nothing to show that the appellant acted in heat of passion. But that apart, if exception 4 to section 300 is seen defence has to show presence of five ingredients, viz. that the incident occurred without premeditation, that it occurred in sudden fight; that it occurred in the heat of passion; that it occurred upon a sudden quarrel; and that it occurred when the offender took undue advantage or in a cruel or unusual manner. If any of these five ingredients are not established the case cannot fall under exception 4 to section 300 of IPC. 17. In this context, if the evidence is seen Hanifabu, sister of the deceased only states about some quarrel that had taken place between the two. From the dying declaration, it can be inferred that there was no premeditation or absence of premeditation and quarrel can be inferred but whether it was in the heat of passion or not is a question which remains to be answered by the appellant and the appellant has failed to do so. Similarly, if the action on the part of the appellant is seen, he assaulted the deceased with a deadly weapon when the deceased was unarmed. That after assaulting the deceased, he inflicted multiple blows on various parts of the body including vital parts like chest. Similarly, if the action on the part of the appellant is seen, he assaulted the deceased with a deadly weapon when the deceased was unarmed. That after assaulting the deceased, he inflicted multiple blows on various parts of the body including vital parts like chest. The appellant, therefore, cannot be said to have not taken undue advantage of the situation or having acted in a cruel or unusual manner. Exception 4 therefore will not be available to the appellant. A contention was raised that all witnesses are interested witnesses as they were relatives of the deceased. In this context, we may observe that it is a settled proposition of law that evidence of related witnesses cannot be discarded as evidence of interested witnesses. Being relative is not synonymous to term 'interested witness'. Interested witness is he who is interested in ensuring conviction of the accused for whatever reasons and not the witness who is relative of the deceased or who is interested in ensuring conviction of the miscreant. In the instance case, there is no evidence to show that any of the witnesses had any grievance against the accused to attribute particular motive for them to be interested in ensuring the conviction. 18. In our view, therefore, in light of the foregoing discussions, we do not find any merits in the appeal. The conviction recorded by Sessions Court, Amreli in Criminal Appeal No. 107 of 1992 is hereby confirmed. The appeal is dismissed. Appeal dismissed.