JUDGMENT : N.K. GUPTA, J. 1. Since both the appeals are connected as they arise out of the same judgment of conviction and order of sentence dated 31.08.2006 passed by the First Additional Sessions Judge, Gwalior (M.P.) in Sessions Trial No. 33/2006, they are hereby decided by the present common judgment. The appellants have preferred the present appeals being aggrieved by the aforesaid judgment passed by the First Additional Sessions Judge, Gwalior (M.P.) whereby each of the appellants has been convicted of offence under Section 302/34 of IPC and sentenced to life imprisonment with a fine of Rs. 5,000/-. 2. Prosecution's case, in short, is that on 16.08.2005 at about at about 10:30 am, the deceased Narendra was sitting at his shop of STD PCO at Rajpayega Road, Gwalior. The appellants came to his shop and demanded some money to consume liquor. When deceased Narendra refused to give any amount then they started assaulting him with knives. The deceased Narendra ran from his shop and when he reached in front front of Radhaswami Pathology Lab, the appellants surrounded him and gave blows of knives on his chest, waist, buttocks, left thigh and ankle joints. On his screaming, his brother Mahesh Shivhare (PW-2), witness Vishal, father Hariom Shivhare (PW-1) and Jitendra Shivhare (PW-3) rushed to the spot and saved the deceased Narendra, however, the appellants ran away from the spot. Smt. Kusum Sharma (PW-4) wife of the deceased Narendra also reached the spot towards the closure of the incident and since it was raining she took her husband directly to the hospital instead of taking him to the police station. When the deceased Narendra was examined by Dr. B.S. Tomar (PW-13) who recorded the MLC report Ex. P-22, a wireless message was given to the concerned Police Station i.e. Hujrat Kotwali, Lashkar, Gwalior (M.P.). ASI Fateh Singh Parmar (PW-11) immediately rushed to the hospital. He recorded Dehati Nalisi Ex. P-8. Also, the dying declaration of the deceased was recorded as Ex. P-1 before two witnesses. The deceased Narendra was found with five injuries which were incised wounds and out of these the wound which was on the left side of the chest was quite deep. It was a stab wound and air bubbles were coming out it. 3. After some treatment, the deceased Narendra succumbed to the injuries. The Station House Officer Mr. The deceased Narendra was found with five injuries which were incised wounds and out of these the wound which was on the left side of the chest was quite deep. It was a stab wound and air bubbles were coming out it. 3. After some treatment, the deceased Narendra succumbed to the injuries. The Station House Officer Mr. B.R. Dwivedi (PW-14) after performing various formalities sent the dead body of the deceased Narendra for post mortem. Dr. Yogendra Singh (PW-12) performed the post mortem on the body of the deceased. He found as many as nine injuries sustained by the deceased. Out of them, five injuries were stitched wounds whereas the injury found on the chest was fatal in nature. Right ventricle of the heart was found ruptured. Similarly, left ventricle of the heart was also found ruptured. According to Dr. Yogendra Singh (PW-12), the deceased died due to those fatal injuries caused on the heart. ASI Fateh Singh Parmar (PW-11) went to the spot and prepared a spot map Ex. P-2. He took bloodstained and plain stones from the spot and prepared the seizure memo Ex. P-16. The appellant Mukesh alias Sagar alias Mama Dhobi was arrested for another offence at Police Station Kumhari, District Damoh and therefore ASI Fateh Singh Parmar (PW-11) prepared a formal arrest memo Ex. P-17. The station house officer B.R. Dwivedi (PW-14) arrested appellant Vivek Sharma with the permission of the Chief Judicial Magistrate and a memo Ex. P-23 was prepared. On interrogation, appellant Vivek Sharma told about a buttoned knife and on that knife name of appellant Vivek Sharma was also engraved. Such knife was recovered with a recovery memo Ex. P-14. Appellant Mukesh alias Sagar alias Mama Dhobi gave information about his knife and thereafter one buttoned knife was recovered from him and a recovery memo Ex. P-7 was prepared. The articles recovered from the appellants, received from the hospital and collected from the spot were sent for their forensic science analysis and in the report of Forensic Science Laboratory Ex. P-19 it was found that both the knives were found stained with blood. However, no report of serologist could be produced. After due investigation the charge-sheet was filed before the Chief Judicial Magistrate, Gwalior (M.P.) who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Gwalior (M.P). 4. P-19 it was found that both the knives were found stained with blood. However, no report of serologist could be produced. After due investigation the charge-sheet was filed before the Chief Judicial Magistrate, Gwalior (M.P.) who committed the case to the Court of Sessions and ultimately it was transferred to the First Additional Sessions Judge, Gwalior (M.P). 4. Both the appellants abjured their guilt. They took a plea that they did not know the deceased Narendra. The appellant Mukesh alias Sagar alias Mama Dhobi took a plea that he was never known as Sagar or Mama Dhobi and he was falsely implicated in the matter due to instigation of the relatives of the deceased, however, no defence evidence was adduced. 5. The First Additional Sessions Judge, Gwalior (M.P.), after considering the prosecution's evidence, acquitted both the appellants from the charge of Section 25(1-B)(b)/27 of the Arms Act, however, convicted and sentenced them as mentioned above. 6. We have heard the learned counsel for the parties. 7. First of all, it is to be considered as to whether the death of the deceased Narendra was homicidal in nature or not. In this connection, the evidence of Dr. Yogendra Singh (PW-12) who performed the post mortem on the body of the deceased Narendra and gave a report Ex. P-21 may be considered. Dr. Yogendra Singh (PW-12) found the following injuries to the deceased Narendra:- (1) Stab wound 2.2 x 0.5 x through and through in thoracic cavity over left side of chest 2 cm obliquely downwards towards medial side between 5th and 6th ribs. Tearing right ventricle 2 x 0.5 cm x 0.5 cm; (2) Stitch wound 2.5x stitches through and through, Thoracic cavity situated between 4-5 ribs on left side of chest with sharp edged 2 cm away laterally to the left areole tearing left ventricle through and through blood found in thoracic cavity; (3) St. wound 2.5 x 0.5 x 4 cm situated over left thigh laterally 2 cm below left iliac crest directed anteriorly. Tearing muscles; (4) Bruise 4 x 4 cm with redness over left cubical fossa with echymosis; (5) St. wound 1.5 x 0.5 x 3 cm medial part of left buttock; (6) St. wound 1.5 x 0.5 x 2 cm on back of lumber region right side and 2 cm above right iliac crest; (7) St. Tearing muscles; (4) Bruise 4 x 4 cm with redness over left cubical fossa with echymosis; (5) St. wound 1.5 x 0.5 x 3 cm medial part of left buttock; (6) St. wound 1.5 x 0.5 x 2 cm on back of lumber region right side and 2 cm above right iliac crest; (7) St. wound 2 x 0.5 x through and through over left lumber region 2.5 cm away 1st lumber vertebrae towards left side; (8) St. wound 2 x 0.5 x 0.2 cm medial aspect post part of left thigh; (9) St. wound 2 x 0.5 x 3 cm on mid post part of left thigh." Out of these injuries, he found first two injuries on left side of the chest and through such injuries the left and right ventricles of heart were found penetrated and due to such fatal injuries the deceased had died. According to Dr. Yogendra Singh (PW-12), the death of the deceased was homicidal in nature and the injuries sustained by the deceased Narendra were sufficient to cause his death during the natural course of his life. However, the deceased Narendra was examined by Dr. B.S. Tomar (PW-13) initially who had recorded only five injuries. Since the deceased was in semi-conscious state, he could not notice the injuries caused to the deceased on the left iliac crest and on the waist, however, he noticed main two injuries which were caused on the left side of the chest of the deceased Narendra. Hence, looking to the MLC report Ex. P-22, it is proved beyond doubt that the deceased Narendra sustained two injuries on the left side of the chest and both were fatal in nature. 8. The witnesses Hariom Shivhare (PW-1) father of the deceased, Mahesh Shivhare (PW-2) brother of the deceased and Jitendra Shivhare (PW-3) were examined as eyewitnesses whereas Smt. Kusum Sharma (PW-4) wife of the deceased Narendra was examined as partial eyewitness. Such witnesses have stated that on hearing the shouts of the deceased Narendra they saw that the deceased Narendra was running from his shop of STD PCO on the road and the appellants were chasing him having one knife each in their hands. Thereafter, the appellants assaulted the deceased Narendra with such knives. Such witnesses have stated that on hearing the shouts of the deceased Narendra they saw that the deceased Narendra was running from his shop of STD PCO on the road and the appellants were chasing him having one knife each in their hands. Thereafter, the appellants assaulted the deceased Narendra with such knives. When appellants ran away from the spot then Smt. Kusum Sharma (PW-4), wife of the deceased, took him to the hospital and upon the intimation given on phone, ASI Fateh Singh Parmar (PW-11) reached the hospital and recorded the Dehati Nalisi (PW-8). When he found that it is possible that the deceased Narendra would die then a dying declaration Ex. P-1 was also recorded. Learned counsel for the appellants have cross-examined the eyewitnesses in a lengthier manner but nothing material could be obtained by that cross-examination. The learned counsel for the State has submitted that the evidence given by witnesses is duly corroborated by the timely lodged Dehati Nalisi Ex. P-8 and the dying declaration Ex. P-1 whereas the learned counsel for the appellants have submitted that both such documents were the cooked up documents. According to Dr. B.S. Tomar (PW-13), the deceased Narendra was under semi-conscious state and therefore he was not capable of giving any dying declaration or any information so that the Dehati Nalisi could be lodged. 9. If the document Ex. P-8 i.e. Dehati Nalisi is considered then it would be apparent that Dehati Nalisi was recorded at about 10:40 am whereas the consequential FIR Ex. P-9 was recorded at about 03:00 pm. No acceptable reason for such delay could be shown by ASI Fateh Singh Parmar (PW-11). He has mentioned in his cross-examination, in para 13, that on the day of incident he reported on duty at Hujrat Kotwali at about 08:00 am and he went on patrolling. Thereafter, when he received an information on wireless phone from the control room then he went to the hospital. After recording the Dehati Nalisi he started for the spot. According to him, as stated in para 11, he left J.A. Hospital at about 11:10 am to visit the spot. When a police officer records Dehati Nalisi then it is for him to 8 Criminal Appeals 764/06 & 789/06 send it immediately to the police station and to get the case registered and after registration of the case he could start investigation. When a police officer records Dehati Nalisi then it is for him to 8 Criminal Appeals 764/06 & 789/06 send it immediately to the police station and to get the case registered and after registration of the case he could start investigation. If the spot map which is prepared by Mr. Fateh Singh Parmar (PW-11) is perused then he did not mention the crime number on that map and started by mentioning the crime number to be 0/2005. The investigating officer is required to perform the urgent investigation first and hence either he had to send the document of Dehati Nalisi to the police station with another constable or he ought to have immediately rushed to the police station to get the FIR registered and thereafter he could have started the routine investigation. To visit the spot and prepare the spot map is not an urgent investigation. It is a routine investigation, hence, the possibility cannot be ruled out that the alleged Dehati Nalisi was written by ASI Fateh Singh Parmar (PW-11) after getting information from the relatives of the deceased Narendra and thumb impression of the deceased was obtained. The learned counsel for the appellants has invited the attention of this Court to the judgment passed by the Apex Court in the case of "Rajeevan and another Vs. State of Kerala" [ AIR 2003 SC 1813 ] in which the consequence of delay in FIR has been discussed, hence, in the present case, in the light of the aforesaid judgment, the Dehati Nalisi Ex. P-8 appears to be written either ante-timed or on the information given by the relatives of the deceased. Hence, it loses its evidentiary value. 10. If Dehati Nalisi Ex. P-8 is considered along with dying declaration Ex. P-1 recorded by ASI Fateh Singh Parmar (PW-11) then it is highly surprising that the Dehati Nalisi is written with a flow mentioning detailed statement whereas in dying declaration it appears that very short description was given by the deceased when questions were asked. Only seven answers were given in the dying declaration Ex. P-1. Looking to the dying declaration it was recorded on 16.8.2005 at about 10:50 am whereas Dehati Nalisi Ex. P-8 was recorded at 10:40 am. Only seven answers were given in the dying declaration Ex. P-1. Looking to the dying declaration it was recorded on 16.8.2005 at about 10:50 am whereas Dehati Nalisi Ex. P-8 was recorded at 10:40 am. The condition of the health of the deceased Narendra could not deteriorate so much within 10 minutes that he would have given information which was quoted in the Dehati Nalisi in a flow and with detailed description and then ten minutes later, his health was deteriorated where he gave reply to seven questions in brief. Dying declaration Ex. P-1 can be accepted though it is recorded by the police officer, but it should be examined as to whether it is believable or not. In this connection the judgment passed by the Hon'ble Apex Court in the case of "Dalip Singh Vs. State of Punjab" [ AIR 1979 SC 1173 ] may be mentioned in which it is held that better or more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. In the present case, if MLC report Ex. P-22 is perused then Dr. B.S. Tomar (PW-13) examined the deceased Narendra at 11 am and recorded his injuries in the MLC report then ASI Fateh Singh Parmar (PW-11) had ample time to request the concerned doctor for recording of the dying declaration and if he himself wanted to record the dying declaration he should have taken a certificate from the doctor that the deceased was capable of giving his dying declaration. According to Dr. B.S. Tomar (PW-13) at about 11 am the deceased was in semi-conscious state, hence, looking to the overt act of ASI Fateh Singh Parmar (PW-11), it appears that though he had an opportunity to get the dying declaration recorded by the doctor he neither made an application to the doctor nor did he take any certificate from him that the deceased was in a position to give the dying declaration. The deceased Narendra had sustained mainly two injuries causing rupture of two different ventricles in the heart and therefore he was not in a position to give the description of the incident in free flowing manner whereas ASI Fateh Singh Parmar (PW-11) himself recorded the Dehati Nalisi Ex. P-8 from the deceased Narendra and as discussed above it is found that he did not send or take that Dehati Nalisi to the police station promptly so that a prompt FIR could be recorded. Instead of going to the police station, he went to the spot and prepared the spot map, hence, possibility cannot be ruled out that not only the Dehati Nalisi Ex. P-8 but also the dying declaration Ex. P-1 was recorded much after the death of the deceased and it could be recorded on the information given by various witnesses. Also, it would be apparent that the dying declaration was recorded in presence of Hariom Shivhare (PW-1) i.e. the father of the deceased Narendra who was an interested witness whereas the officials of the hospital could have been taken as witnesses during recording of the dying declaration. Under these circumstances, the dying declaration Ex. P-1 recorded by ASI Fateh Singh Parmar (PW-11) cannot be relied upon. 11. If the dying declaration Ex. P-1 and Dehati Nalisi Ex. P-8 are discarded then the consequential FIR Ex. P-8 is also discarded. The learned counsel for the appellants have submitted that when the documents which were the basis of the case have been discarded then evidence of the witnesses has no evidentiary value and the appellants cannot be convicted. However, in this connection, the learned counsel for the State has invited the attention of this Court towards the judgment passed by the Apex Court in the case of "Somappa Vamanappa Madar Shankarappa Ravanappa Kaddi Vs. The State of Mysore" [ AIR 1979 SC 1831 ] in which it is held that rejection of FIR would not detract the testimony of eyewitnesses which will have to be assessed on its own merits. Hence, in the light of the judgment passed by the Apex Court in the case of Somappa Vamanappa (supra) the testimony of the eyewitnesses cannot be discarded without minute examination. 12. Hence, in the light of the judgment passed by the Apex Court in the case of Somappa Vamanappa (supra) the testimony of the eyewitnesses cannot be discarded without minute examination. 12. In this case, Hariom Shivhare (PW-1), Mahesh Shivhare (PW-2), Jitendra Shivhare (PW-3) and Smt. Kusum Sharma (PW-4) have stated that when they heard the screams of the deceased Narendra, the deceased was running from his STD PCO shop on the road and the appellants were chasing him having one knife each with them. Thereafter, they assaulted the deceased Narendra with the said knives causing so many injuries. A detailed cross-examination of witness Hariom Shivhare (PW-1) was done relating to his family, profession, post retrial profession and on many other things but nothing material could be brought in his evidence to show that he was not the eyewitness. Similarly, no material contradiction could be brought in the evidence of remaining three witnesses. Jitendra Shivhare (PW-3) who is one of the STD PCO booth owners and having a shop adjacent to the shop of the deceased Narendra has stated about the incident. No interest of this witness could be established with the deceased Narendra so that he would have stated a falsehood. If arrest of the appellants is considered then it would be apparent that they had criminal background and they were not common men rather they were already in jail due to another case. No suggestion of enmity was given to any of the eyewitnesses between the appellants and the deceased Narendra or the appellants with various eyewitnesses. Even if the appellants were known to the eyewitnesses, since neither there was any enmity nor friendship then it would not be possible for the eyewitnesses to implicate the appellants falsely. Also, soon after the incident, the deceased Narendra was taken to the hospital and an intimation was given to the concerned police station and ASI Fateh Singh Parmar (PW-11) came to the spot. ASI Fateh Singh Parmar (PW-11) was though disbelieved for recording of dying declaration Ex. P-1 and Dehati Nalisi Ex. P-8 but from his spot map Ex. P-2 it is clear that he prepared the spot map at about 11:30 am. In that spot map, it was mentioned that the culprits demanded a sum to consume liquor and when it was not given they assaulted the deceased. P-1 and Dehati Nalisi Ex. P-8 but from his spot map Ex. P-2 it is clear that he prepared the spot map at about 11:30 am. In that spot map, it was mentioned that the culprits demanded a sum to consume liquor and when it was not given they assaulted the deceased. Various places are shown in detail in the spot map and names of the appellants are also mentioned in indication B of the spot map. Hence, it is clear that though the deceased Narendra was not in a position to give any statement but these eyewitnesses had informed the ASI Fateh Singh Parmar (PW-11) soon after the incident that the appellants were the persons who assaulted the deceased Narendra and therefore when the witnesses immediately informed the police officer about the culprits then it cannot be said that they created a case against the appellants in an afterthought manner or the case was cooked up after discussion amongst all the eyewitnesses. 13. It is also clear that after arrest of the appellants, the investigating officer B.R. Dwivedi (PW-14) interrogated them and one knife was recovered vide recovery memo Ex. P-7 from appellant Mukesh alias Sagar alias Mama Dhobi and one knife was recovered vide recovery memo Ex. P-14 from appellant Vivek Sharma. In this connection, the evidence given by witnesses Robin Mahakali (PW-7) is important. He gave the entire details of the recovery and hence the evidence of investigating officer B.R. Dwivedi (PW-14) is acceptable that one buttoned knife each was recovered from the appellants. According to the report of Forensic Science Laboratory Ex. P-19, blood stains were found on both the knives though the report of serologist could not be produced but in confirmation of evidence given by the eyewitnesses if one buttoned knife each was recovered from the appellants on which blood stains were found then it is a good corroboration to the ocular evidence. 14. P-19, blood stains were found on both the knives though the report of serologist could not be produced but in confirmation of evidence given by the eyewitnesses if one buttoned knife each was recovered from the appellants on which blood stains were found then it is a good corroboration to the ocular evidence. 14. On the basis of the aforesaid discussion where there was no enmity of the eyewitnesses with the appellants, the eyewitnesses were the residents of the same house where the deceased Narendra had his STD PCO shop and eyewitnesses had an opportunity to see the incident and also after looking to their conduct that they immediately took the deceased to the hospital and informed about the incident that happened with the deceased to the ASI Fateh Singh Parmar (PW-11), their evidence is reliable and it is proved beyond doubt that the appellants were the persons who gave the blows of knives causing death of the deceased Narendra. Since the appellants had inflicted more than one blows and such blows were given on the chest of the deceased landing on the heart then it can be presumed that the culprit who gave a blow of knife on the heart himself had intended to kill the deceased Narendra. 15. At this stage, learned counsel for the appellants have submitted that it is not clear by the evidence of eyewitnesses that out of two appellants who gave the blow on the chest of the deceased and if one has given such a blow then the another cannot be convicted of offence under Section 302 of IPC because he did not intend to kill the deceased Narendra and he caused simple injuries to the deceased Narendra. By omnibus statements of the eyewitnesses, one innocent cannot be convicted of offence of Section 302 of IPC along with the actual culprit. It is also clear from the record that there was no previous enmity between the appellants and the deceased Narendra and that they demanded the sum so that they could consume liquor and hence they started assaulting the deceased, therefore, the second one who did not assault on the chest of the deceased could not know that the co-accused would assault in such a deadly manner and therefore such person would not have any common intention with the main culprit who assaulted on the chest of the deceased Narendra. When it is not clear that out of two culprits who was the author of the chest injury then the benefit of doubt shall be received by both the accused/appellants. In this connection, the attention of this Court is invited to the judgment passed by the Apex Court in the case of "Gopal and others Vs. State of U.P. and others" [2001 All India Appeals Reporter (Criminal) 89]. For ready reference, a small portion of para 16 and 17 of the said judgment may be reproduced as under: 16. ......This is an area where it is difficult for us to pin point that any one of those assailants would have intended any particular injury which the deceased sustained though it can be said that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. However, it is difficult for the Court to conclude that those injuries were actually intended by the assailants. Thus, it is not possible to bring the offence within the purview of the 'thirdly' clause of Section 300 so far as remaining appellants are concerned. 17. While confirming the conviction and sentence imposed on appellant Lallu we alter the conviction of the remaining appellants to the one under Section 304, Part II of the Indian Penal Code. ........" 16. In the light of the aforesaid judgment passed by the Apex Court in Gopal (supra), there is a similarity of situation and when the court is not in a position to locate the actual culprit who is responsible for killing the deceased Narendra then benefit of doubt shall be given to both the appellants. None of them can be convicted of offence under Section 302 of IPC and therefore both of them should be convicted of offence under Section 304 (Part II) of IPC. 17. So far as the sentence is concerned, in the case of Gopal (supra), the Apex Court has recorded six years' RI in the matter. However, in other cases, maximum sentence of 10 years was recorded against the similarly placed accused persons. In the present case, the appellants are in jail since September and October, 2005 and therefore they have remained in custody for more than 11 years. Hence, it would be appropriate to reduce their jail sentence equivalent to the period in which they have remained in the custody during trial and appeal. 18. In the present case, the appellants are in jail since September and October, 2005 and therefore they have remained in custody for more than 11 years. Hence, it would be appropriate to reduce their jail sentence equivalent to the period in which they have remained in the custody during trial and appeal. 18. On the basis of the aforesaid discussion, the appeals filed by the appellants are hereby partly allowed. Their conviction as well as sentence of offence under Section 302/34 of IPC is hereby set aside, however, under the same head of the charge, each of them is convicted of offence under Section 304 (Part II) of IPC and sentenced to the jail sentence for the period in which they remained in custody during trial and appeal. No fine is imposed separately because if fine is imposed and since the appellants could not deposit the amount in last 11 years, the imposition of fine shall increase their custody period whereas they have remained in custody for more than 11 years while the standard sentence could be of 10 years. The appellants are in jail and therefore the registry is directed to arrange for the issuance of super-session warrant so that they be released forthwith.