JUDGMENT : H.C. Mishra, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant Shaukat Ali Ansari is aggrieved by the Judgment of conviction dated 9th November 2002 and Order of sentence dated 11.11.1992 passed by the learned 1st Additional Sessions Judge, Godda, in Sessions Case No.64 of 1989/7 of 1990, whereby, the appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life. 3. According to the prosecution story, the informant Maniruddin Ansari, was the co-owner of a bakery (described in the FIR as bread factory) along with his younger brother Irfan Ansari. On the date of occurrence, i.e., 23.12.1988, at about 5 AM in the morning, Santosh Ravidas, a lobour in the bakery, came running and informed the informant, that his younger brother Irfan Ansari, who was in the factory, had been assaulted by knife. Upon getting the information, the informant rushed to the bakery and found his brother lying in the pool of blood in the courtyard of the bread factory. He asked his injured brother, who informed him, that in the night, he had slept in the factory and in the morning, when he was preparing himself for Namaj, the accused appellant Shaukat Ali Ansari, who was a purchaser of breads from the factory, came in the courtyard of the factory and as soon as the victim got up after washing his hands and feet, Shaukat Ansari assaulted him by knife. The co-accused Noor Islam was instigating Shaukat Ansari to kill him (the deceased). Upon the alarm raised, Sikandar and Asiruddin came to the place of occurrence, whereupon, Shaukat Ansari fled away throwing away the knife in the courtyard. There were dues of Rs.2,800/-and Rs.1,200/-with Shaukat Ali Ansari and Noor Islam respectively, which were demanded, and further supply of bread was stopped, due to which the occurrence had taken place. The injured victim was brought to the hospital on a cot and by the time, the Doctor could come, he died. There were dues of Rs.2,800/-and Rs.1,200/-with Shaukat Ali Ansari and Noor Islam respectively, which were demanded, and further supply of bread was stopped, due to which the occurrence had taken place. The injured victim was brought to the hospital on a cot and by the time, the Doctor could come, he died. Fardbeyan to the aforementioned effect of the informant Maniruddin Ansari was recorded by the police at the hospital, on the basis of the which, Mahagama P.S. Case No.133 of 1988 corresponding to G.R. No.990 of 1988, was instituted for the offence under Sections 302/34 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused persons. 4. After commitment of the case to the Court of Session, the charge was framed against both the accused Shaukat Ali Ansari and Noor Islam for the offence under Sections 302/34 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, six witnesses were examined on behalf of the prosecution. The defence had not examined any witness. 5. PW–5 Md. Manuriddin Ansari, is the informant in the case. He has stated that on 23.12.1988 at about 5 AM in the morning, Santosh Ravidas, an employee of the bread factory came and informed him that his younger brother Irfan had been assaulted by Shaukat Ali and Noor Islam by knife. He rushed to the bread factory, where, he found his brother Irfan lying injured in the courtyard of the factory and when he asked him, his brother informed him that Shaukat had assaulted him by knife and Noor Islam was instigating to kill him. There were two knife injuries on the chest of Irfan. Irfan also informed him that in the morning, he was preparing himself for Namaj, washing his hands and feet, and as soon as he stood up, Shaukat assaulted him by knife. Upon the alarm raised by him, Sikandar Ansari and Asiruddin Ansari came there. Irfan had also informed the informant that Rs.2,800/-was due with Shaukat and Rs.1,200/-was due with Noor Islam and he was assaulted for the demand made for money. This witness has further stated that he brought Irfan to Mahagama Hospital on a cot, where he was declared dead by the Doctor. Irfan had also informed the informant that Rs.2,800/-was due with Shaukat and Rs.1,200/-was due with Noor Islam and he was assaulted for the demand made for money. This witness has further stated that he brought Irfan to Mahagama Hospital on a cot, where he was declared dead by the Doctor. His fardbeyan was recorded at the hospital by the police, which he had read and upon finding true, he had put his signature. Upon his identification, the fardbeyan was marked Exhibit–2. This witness was put to extensive cross-examination, wherein he has stated that he has two wives, one belonging to Muslim community and other belonging to Santhal, who has also converted to Muslim. He has also admitted that a Santhal girl had also filed a case upon his son, but he has no knowledge as to the nature of the case. This witness also admitted in his cross-examination that by the time, he reached the factory, Sikandar and Asuriddin were already present near his brother. He has denied the suggestion that by the time he reached the place of occurrence, his brother was already dead. 6. PW–1 is Santosh Ravidas, who was an employee in the bakery had gone to inform the informant about the occurrence. This witness has stated that he was sleeping in the factory in the night and in the morning, he got up for urinating, when he saw that Shaukat assaulted Md. Irfan by knife on his right and left chest. Irfan was crying for help, whereupon, he rushed to the house of Irfan and informed his elder brother Maniruddin about the occurrence, stating that Shaukat had assaulted Irfan by knife. Thereafter, both of them came to the place of occurrence and Shaukat Ali fled away pushing Irfan. He has stated that Noor Islam was also there with Shaukat Ali. This witness has identified both the accused in the Court. This witness was put to cross-examination, in which, he has stated that he had not stated before the police that he woke up on the alarm raised by his employer and found him injured, rather he had stated that he had seen Shaukat assaulting Irfan. 7. PW–2 Asiruddin and PW–3 Md. Sikander Ansari are the persons, who had reached the place of occurrence upon the alarm raised by the deceased. 7. PW–2 Asiruddin and PW–3 Md. Sikander Ansari are the persons, who had reached the place of occurrence upon the alarm raised by the deceased. PW–2 Asiruddin has stated that while he was returning after offering Namaz in the Mosque, he saw Shaukat fleeing away. When he reached near the bread factory of Irfan, he saw Irfan fallen down. Upon asking, Irfan informed him that Shaukat had assaulted him by knife. Irfan had not named any other person before him and thereafter he became unconscious. PW-3 Md. Sikandar Ansari has also stated that when he reached the place of occurrence upon the alarm raised by Irfan, he saw knife injuries on both sides of the chest of Irfan and upon asking, Irfan stated that he was assaulted by Shaukat. He has also stated that he had seen Shaukat fleeing away and he has identified the accused in the Court. In his cross examination, PW–2 Asiruddin has stated that he had not entered the factory and he had not seen any one near Irfan. He had not met either Maneer (informant) or Sikandar near Irfan. PW-3 Md. Sikandar Ansari has stated in his cross-examination that when he reached the place of occurrence, informant Maniruddin was not there, who came later and thereafter the deceased was taken to hospital. This witness has also stated that at the police station, his statement was recorded first, upon which he put his thumb impression. 8. PW-4 is Dr. Ashok Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 23.12.1988 and had found the following ante-mortem injuries on him:- (i) a punctured wound with clean margins 1¼ ” x ½ ” x 4 ½” deep on the right parasternal region of anterior chest wall in the 3rd intercostal space. (ii) Punctured would 1 ¼”x ½” x 2” deep in 2nd intercostal space near anterior auxiliary line going downwards and posteriorly. He has stated that on dissection the findings were: Scalp – no abnormality detected. Brain -slightly pale. Throat -no abnormality detected. Heart – Small and empty. Pericardial sac punctured anteriorly and whole thorasic cavity filled with liquefied blood in large quantity. Left lung -congested. Right lung also congested with an incised wound on anteromedial surface. Stomach contained about 2 ounce of juice like material. Liver and spleen nothing particular. Kidneys-No abnormality detected. Intestine-contained gases and faecal matter. Throat -no abnormality detected. Heart – Small and empty. Pericardial sac punctured anteriorly and whole thorasic cavity filled with liquefied blood in large quantity. Left lung -congested. Right lung also congested with an incised wound on anteromedial surface. Stomach contained about 2 ounce of juice like material. Liver and spleen nothing particular. Kidneys-No abnormality detected. Intestine-contained gases and faecal matter. Urinary bladder contained about 50 ml. of urine. Abdominal cavity also contains some liquefied blood. This witness has stated that the injuries were caused by sharp pointed weapon, such as, chhura. He has identified the post-mortem report to be in his pen and signature, which was marked as Exhibit-1. In his cross-examination, he has stated that the injuries could not be caused by bhala. 9. PW–6 is Mangra Oraon, the I.O. of the case. This witness has stated that he had recorded the fradbeyan of the informant Maniruddin at Mahgama Hospital, which was read over to him and upon finding it true, the informant put his signature thereon. This witness has identified the fradbeyan, which was marked Exhibit–2. He has also identified the endorsement on the fradbeyan, which was marked Exhbit–3 and he has proved the FIR prepared on the basis of fradbeyan, which was marked Exhibit–4. This witness also stated that he had prepared the inquest report of the dead body of the deceased, which on his identification, was marked Exhibit–5. He has stated that the dead body was sent for post-mortem examination. This witness has also given the description of the place of occurrence, which according to this witnesses, is the open courtyard in front of the bread factory, where the occurrence had taken place, and he had also found blood stains on the earth and nearby the blood stains, one blood stained knife was also found. He had collected the blood stained earth and the blood stained knife and had prepared the seizure list, which on his identification, was marked Exhibit–6. This witness has stated about the investigation done by him and submission of the charge-sheet. In his cross-examination, this witness has stated that Maniruddin Ansari had not stated before him that Santosh had informed him that Shaukat Ali and Noor Islam had assaulted the deceased by knife. This witness has stated about the investigation done by him and submission of the charge-sheet. In his cross-examination, this witness has stated that Maniruddin Ansari had not stated before him that Santosh had informed him that Shaukat Ali and Noor Islam had assaulted the deceased by knife. He has also stated that Santosh Ravidas had stated before him that he woke up upon the alarm raised by the deceased and he had not stated that he had seen Shaukat assaulting the deceased, rather he had stated that Shaukat was holding Irfan with knife in his hand. 10. On the basis of the evidence on record, the appellant has been found guilty and convicted and sentenced for the offence under Section 302 of the Indian Penal Code, whereas the other co-accused has been acquitted by the Trial Court below. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Court below are absolutely illegal and cannot be sustained in the eyes of law. The FIR clearly shows that the informant was not informed by Santosh Ravidas about any accused, but in his evidence the informant had stated that Santosh Ravidas had informed him that the appellant Shaukat Ali and the co-accused had assaulted Irfan by chhura and the similar statement has been made by PW–1 Santosh Ravidas also, claiming himself to be the eyewitness to the occurrence. Learned counsel submitted that PW–6 Mangra Oraon, the I.O. of the case, has clearly stated that no such statement was made by either of them before him. Learned counsel accordingly, submitted that both these witnesses have made improvements over the prosecution case as stated in the FIR, and accordingly, they are not the reliable witnesses and their evidence cannot be relied upon. Leaned counsel has further submitted that PW–2 Asiruddin has stated that he had seen the deceased in injured condition, who after informing that Shaukat had assaulted him, became unconscious. PW–2 Asiruddin has also stated that no one had reached there by that time and accordingly, the evidences of the other witnesses on the point that the deceased had informed them that he was assaulted by Shaukat, are not reliable. PW–2 Asiruddin has also stated that no one had reached there by that time and accordingly, the evidences of the other witnesses on the point that the deceased had informed them that he was assaulted by Shaukat, are not reliable. It is also pointed out that this witness has stated that he had not entered the factory, and as such he could not have seen the deceased as the place of occurrence is within the factory. As such his evidence also is not worth reliance. Learned counsel further submitted that PW–3 Md. Sikandar Ansari has stated that at the police station, his statement was recorded first, on which, he had put his thumb impression, but this statement, being the first version of the prosecution case, had been concealed by the prosecution and the benefit thereof has to be given to the defence. Learned counsel again submitted that even in the statement of the accused recorded under Section 313 of the Cr.P.C., relevant questions were not put to him. Lastly, learned counsel submitted that the appellant had been charged for the offence under Section 302 read with Section 34 of the Indian Penal code, but he has been convicted only for the offence under Section 302 of the Indian Penal Code, which cannot be sustained in the eyes of law. In support of his contention, learned counsel has placed reliance upon the decision of the Hon’ble Supreme Court in Nanak Chand Vs. State of Punjab, reported in AIR 1955 SC 274 , wherein where, the accused was charged for the offence under Sections 302/34 and he was convicted for the offence under Section 302 IPC, it was held by the Apex Court that it was difficult to hold in the circumstances of that case that the appellant was not prejudiced by not framing of the charge under Section 302 of the Indian Penal Code. In support of his contention that the relevant questions were not put to the appellant under Section 313 of the Cr.P.C., learned counsel has placed reliance upon the decision of the Apex Court in Latu Mahto and Anr. Vs. State of Bihar (Now Jharkhand), reported in (2008) 3 SCC (Cr.) 500. In support of his contention that the relevant questions were not put to the appellant under Section 313 of the Cr.P.C., learned counsel has placed reliance upon the decision of the Apex Court in Latu Mahto and Anr. Vs. State of Bihar (Now Jharkhand), reported in (2008) 3 SCC (Cr.) 500. Placing reliance on these decisions, learned counsel submitted that the conviction of the appellant cannot be sustained in the eyes of law and in the facts of this case, the appellant is entitled at least for the benefits of doubt, as there were chances of the deceased to be killed by some Santhal, due to the fact that the informant had married and converted the religion of a Santhal lady and even his son had some dispute with a Santhal girl, who had also filed a case upon his son. 12. Learned counsel for the State on the other hand has submitted that the prosecution has been able to prove the charge against the accused-appellant beyond all reasonable doubts, in as much as, the prosecution case is supported by one eyewitness to the occurrence, PW–1 Santosh Ravidas, an employee of the bakery, who has clearly stated that when he woke up, he saw the appellant assaulting the deceased by knife and thereafter, he went and informed the elder brother of the deceased, i.e., the informant Maniruddin Ansari and when they came to the place of occurrence, the appellant pushed the deceased and fled away. Learned counsel also submitted that PW–2 Asiruddin had found the deceased in the injured condition in the courtyard and upon asking, the deceased informed him that the appellant Shaukat Ali had assaulted him by knife. Even PW-3, Md. Sikandar Ansari, who had reached the place of occurrence upon alarm raised by the deceased, has also stated that the deceased informed him that the appellant Shaukat Ali had assaulted him by knife, and both these witnesses had seen the accused Shaukat Ali fleeing away from the place of occurrence. Learned counsel submitted that similar statement has been made by the informant PW–5 also and the ocular evidence of these witnesses are fully supported by the medical evidence of PW–4 Dr. Ashok Kumar, and post-mortem report proved by him as Exhibit–1, who had found two injuries on the chest of the deceased caused by knife. Learned counsel submitted that similar statement has been made by the informant PW–5 also and the ocular evidence of these witnesses are fully supported by the medical evidence of PW–4 Dr. Ashok Kumar, and post-mortem report proved by him as Exhibit–1, who had found two injuries on the chest of the deceased caused by knife. The I.O. has also stated that the place of occurrence is the open courtyard of the bakery, from where the blood stained earth and blood stained knife were also seized. Learned counsel accordingly, submitted that this is a case in which there is dying declaration of the deceased made before the witnesses and the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts. It is, thus, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellant. 13. Having heard learned counsels for both the sides and upon going through the record, though we find that PW–1 Santosh Ravidas and PW–5 Md. Maniruddin Ansari, the informant, have made improvements over the prosecution case as stated in the FIR, as PW–1 Santosh Ravidas has tried to become the eyewitness to the occurrence, which according to the evidence of PW–6 Mangra Oraon, the I.O. of the case, is doubtful, but the fact remains that PW–5 Md. Maniruddin Ansari, the informant, PW–2 Asiruddin and PW–3 Md. Sikandar Ansari, all of them stated that when they reached the place of occurrence, the deceased informed them that it was the appellant Shaukat Ali, who had assaulted him by knife. PW–2 Asiruddin and PW–3 Md. Sikandar Ansari had also seen the appellant Shaukat fleeing away from the place of occurrence. Particularly, in view of the evidence of PW–2 Asiruddin and PW–3 Md. Sikandar Ansari, we are not in a position to disbelieve the dying declaration of the deceased made before these witnesses. 14. We do not find any force in the submission of the learned counsel for the appellant that since PW–2 Asiruddin had stated that soon after disclosing the name of appellant Shaukat Ali, the deceased had became unconscious, and as such, the deceased could not have made such statement before other witnesses, who arrived later. 14. We do not find any force in the submission of the learned counsel for the appellant that since PW–2 Asiruddin had stated that soon after disclosing the name of appellant Shaukat Ali, the deceased had became unconscious, and as such, the deceased could not have made such statement before other witnesses, who arrived later. The fact remains that all the witnesses reached the place of occurrence in a very close proximity and the witnesses, if they are saying that the deceased informed them that it was the appellant Shaukat Ali, who had assaulted him by knife, the same cannot be disbelieved. There is no merit in the submission of the learned counsel for the appellant that PW–2 Asiruddin had stated that he had not entered the factory, and as such he could not have seen the deceased as the place of occurrence is within the factory, as the place of occurrence, as described by PW–6 Mangra Oraon, the I.O. of the case, is the front open courtyard of the factory. 15. We do not find force in the submission of the learned counsel for the appellant that PW–3 Md. Sikandar Ansari had stated that at the police station, his statement was recorded first, on which, he had put his thumb impression, but this statement had been concealed by the prosecution and the benefit thereof has to be given to the defence. The fact remains that the fardbeyan of the informant was recorded first at the hospital, and thereafter the statements of some witnesses were recorded at the police station. The statement of PW–3 Md. Sikandar Ansari, might have been recorded first amongst the witnesses, whose statements were recorded at the police station, but the first statement that was recorded by the police, is the fardbeyan of the informant, which was recorded at the hospital. As such, it cannot be argued that the first version of the prosecution case has been concealed by the prosecution. 16. We also do not find force in the submission of the learned counsel for the appellant that as the charge was framed against the appellant for the offence under Sections 302/34 of the IPC and he has been convicted only for the offence under Section 302 of the IPC, he was prejudiced by non-framing of the charge under Section 302 of the IPC. In the Nanak Chand’s case (supra), relied upon by the learned counsel for the appellant, it was held by the Apex Court that in the facts of that case, it was difficult to hold that not framing of charge under Section 302 IPC had not caused any prejudice to the appellant to the said case. The facts of the present case is not the same, and learned counsel for the appellant could not point out that what prejudice has actually been caused to the appellant of this case by framing of charge under Sections 302/34 of the IPC, and not under Section 302 of the IPC. 17. We also do not find any force in the submission of the learned counsel for the appellant that the circumstances against the accused had not been properly explained to the accused while recording his statement under Section 313 of the Cr.P.C., in as much as, we find from the record that the evidence against him which had come in the trial, that he had assaulted the deceased by knife, was specifically asked and he has denied the same. 18. We are of the considered view that since PW–2 Asiruddin and PW–3 Md. Sikandar Ansari had not named the other co-accused Noor Islam, he has been rightly acquitted by the Court below. So for as the appellant Shaukat Ali Ansari is concerned, there is sufficient evidence against him, justifying the conviction and sentence passed against him by the Trial Court below. 19. For the foregoing reasons, we find that the appellant Shaukat Ali Ansari has been rightly convicted and sentenced for the offence under Section 302 of the Indian Penal Code and there is no illegality in the impugned Judgment of conviction dated 9th November 2002 and Order of sentence dated 11.11.1992, passed by learned 1st Additional Sessions Judge, Godda, in Sessions Case No.64 of 1989/7 of 1990, which we hereby, affirm. The appellant is on bail and his bail bond is, hereby canceled. The appellant Shaukat Ali Ansari is directed to surrender in the Court below forthwith for serving out the sentence. The Court below is also directed to issue process forthwith compelling the surrender/production of the appellant for serving out the sentence. 20. This appeal is accordingly dismissed. Let the Lower Court Record be sent back forthwith along with the copy of the Judgment.