G.P. Mathur and Kundan Singh, JJ. - (1.) This appeal has been preferred by Hira Singh, Kundan Singh, Vishram and Babuwa against their conviction under Section 201, 302/34 and 302/34 Indian Penal Code and sentence of seven years R.I. imprisonment for life and imprisonment for life respectively under each count imposed by the learned Session Judge, Banda by his judgement and order dated 25.6.1989 in S.T. No. 456 of 1980. Kuber Singh, appellant was further convicted under Section 323 Indian Penal Code was sentenced to six months R.I. The case of the prosecution, in brief, is that at about 12 in the afternoon of 1.9.1980, the complainant (Anurodh) was looking at the clock of Sri Nath at his door when accused Hira Singh came there and stated abusing him but the complainant objected to the abuses on which Hira Singh assaulted him with a ballam (spear) on his head. He raised an alarm and ran towards his house. Shortly thereafter his father Deshraj (deceased), uncle Ram Sajiwan (deceased), PW3 Ram Autar And RW-4 Shambhu proceeded towards, the Police Station carrying Anurudh on cot. When they reached near a pond outside the village at about 1 p.m. Hira Singh and Vishram armed with spear, Kuber with a lathi and Babuwa armed with a pharsa surrounded them. The cot was put on the ground but meanwhile all the four accused started assaulting Deshraj and Ram Sajiwan. The accused after assaulting Deshraj chopped of his head and took away the same. The incident was also seen by Smt. Shiv Kalia and another uncle (phoopha) of the complainant. Anurodh then got a report scribed from PW.8 Ram Gopal and lodged the same at 3 p.m. on the same day i.e. 1.9.1980 at 6 km distance P.S. Mau. P.W.11 Naipal Singh S.O. of P.S. Mau immediately commenced investigation and after recording the statement of some witnesses under Section 161 Criminal Procedure Code proceeded to the spot where he reached at 4 p.m. He recorded the statement of Ram Sajiwan and then sent him for medical examination, Anurodh and Ram Sajiwan were medically examined at 3.10 p.m. and 8 p.m. respectively at P.H.C. Mau. Ram Sajiwan died on 11.9.1980 while he was admitted in P.H.C. Subsequently post mortem examination was performed on his body at 4.30 p.m. on 12.9.1980. After completing the investigation, charge sheet was submitted against all the four accused. The prosecution in support of its case examined 2 witnesses including 3 eye witnesses. The accused in their statements under Section 313 Criminal Procedure Code denied the prosecution case and claimed that they had been falsely implicated on account of enmity but they did not examine any witness in their defence. The learned Sessions Judge believed the prosecution case and convicted and sentenced the accused as stated above. PW1 Anurodh in his examination-in-chief gave details as to how the incident took place and supported the version given by him in the F.I.R. In his cross-examination, he has stated that Ram Sajiwan was son Budhi who was brother of his father by way of family relationship. Ram Sajiwan however lived along with his father in the same house. He has further stated that Vishram accused had constructed his house after encroaching upon the gali due to which passage of Babuwa accused was blocked. Babuwa then wanted Deshraj to give him some land for the purpose of passage which was declined by him and due to which he started having grudge against him. It was decided in a panchayat that Deshraj should give 3 cubits of land and thereafter the differences were patched up. Regarding the incident, he stated that he was initially assaulted by pointed side of the spear on his head and subsequently by blunt side and that he has received two injuries. The murders took place in the field of his father. Shortly after the incident, he met P.W.3 Ram Gopal, who is lawyer, and he requested him to write down the report. After the report had been scribed, he put his signature on the same. He remained admitted in the hospital for five days. He has further stated that the head of Deshraj was chopped of by pharsa which had a lathi attached of 2 cubits length and this is also known as gandasa. He denied the defence suggestion that he had not carried the F.I.R. to the Police Station but the same was written after the S.O. had come on the spot. he also denied the defence suggestion that Deshraj was Police informer and therefore some bad elements killed him in the field. We have carefully examined the statement of this witness. The first part of the incident is fully corroborated by medical examination report (Ext. ka 3) which shows that he sustained incised and lacerated wound on his head. It is most natural that his father and uncle would have thought of taking him to the hospital for providing him medical aid. The second incident took place outside the village in the field of his father. Therefore, his presence on the spot to witness the second incident cannot be doubted. His statement that four accused assaulted Deshraj and Ram Sajiwan and that the head of former was chopped of has not at all been shaken in any manner in the cross examination. In our opinion, he has given an absolutely, truthful and correct version of the incident on which complete reliance can be placed. In fact, testimony of this witness alone is sufficient on which conviction of the accused can be based. P.W.3 Ram Autar and P.W.4 Shambhu are witnesses of the second incident. Ram Autar has stated that after coming to know about the assault on Anurodh he went to his house. Shambhu was called by Deshraj. Thereafter both these witnesses proceeded to the police station along with Deshraj and Ram Sajiwan who were carrying Anurodh on a cot. When they had reached at a distance of about 2 furlongs from the abadi of the village four accused, out of whom Hira Singh and Vishram were armed with spear, Kuber Singh with a lathi and Babuwa with a pharsa, surrounded them. The cot was kept on the ground. The accused then started assaulting Deshraj and Ram Sajiwan. A spear blow was given to Ram Sajiwan and after Deshraj had fallen down Babuwa chopped of his head. The cross examination of both these witnesses is very brief. Ram Autar admitted that a criminal case was fought between his son-in-law and Kaisa but he did not know whether Kuber Singh, Vishram and Babuwa were witnesses in the aforesaid case. He also admitted that Vishram had given him one lathi blow 3/4 years back on account of some dispute over cattle. He denied that he had any enmity with Vishram and further stated that subsequently a compromise had taken place. The accused have not filed any documentary evidence to show that the accused has appeared as witness in the criminal case, between the son-in-law of Ram Autar and Kaisa. Therefore it is not established that Ram Autar had any enmity with the accused persons. Nothing material has come out in his cross examination which may throw doubt on his presence on the spot. In our opinion, he is an absolutely truthful and reliable witness. Similarly the cross examination of P.W.4 Shambu is also very brief. He denied the defence suggestion that Deshraj and Ram Sajiwan were assaulted in different fields. He admitted that a dacoity was committed in the house of Ram Sakha in which Kaisa, Basikal and Kalpu were prosecuted and accused Kuber Singh, Vishram and Babuwa were prosecution witnesses in the said case. However no direct connection of the accused of the dacoity case with this witness has been established. There is nothing material on record to show that Shambhu has any enmity with the accused persons. In our opinion, he has given a very truthful version of the incident and implicit reliance can be placed upon this testimony. The statements given by P.W.3 and 4 Ram Autar and Shambhu corroborate the testimony of P.W.1 Anurodh. Ram Sajiwan was admitted in P.H.C. Mau in the evening of 1.9.1980, P.W.12 Sankatha Prasad Dubey, Tehsildar Magistrate of Mau Division recorded his dying declaration at 6.45 p.m. on the same day which is Ext. ka 5 on the record. The witness has stated that at the time of the recording of the statement only Doctor M.K. Gupta, P.W.5 was present on the spot and there was no one else. In his dying declaration, Ram Sajiwan has stated that Hira Singh son of Kuber Singh had assaulted his nephew Anurodh with a ballam (spear). When he was carrying Anurodh, four accused Viz. Hira Singh, Kuber Singh, Vishram and Babuwa arrived there and thereafter Anurodh was placed on the ground. Kuber Singh assaulted him (Ram Sajiwan) by lathi and when he caught hold of him. Vishram accused gave him a ballam blow on the right side oxilla which pierced inside and came out below the umbilicus. Babuwa chopped of the head of Deshraj by a gandasa and the accused carried away the same. He tied a angochha (a scarf of cloth) over the wound and returned to the house. His nephew and others had carried him on a cot to the hospital. Daroga ji (Sub Inspector of Police) was present at the place where Deshraj was assaulted and he asked him to proceed to the hospital. The incident took place on Monday at about 12 in the afternoon. He has further stated that Babuwa wanted some land for the purpose of passage from Deshraj and he had left 3 cubits land. Vishram had made construction over the passage which had blocked the way of Babuwa. Below the dying declaration, there is a certificate of P.W.6 Dr. S.K. Gupta which reads as follows:- "Certified that Sri Ram Sajiwan s/o Budhi caste Kewat R/o Bambura, aged about 45 years is fully conscious and his mental faculty is working properly at the time of giving dying declaration." It may be noticed that Ram Sajiwan had received a penetrating wound on the back of right side and there was a exit wound near the umbilicus and contusion on the forehead. His dying declaration was recorded on 1.9.1980 and he died after 11 days on 12.9.1980. He had not received any injuries on head or chest region. The death took place on account of peritonitis. He had not sustained any such injury which may have impaired his mental condition at the time when his dying declaration was recorded. P.W.5 Dr. M.K. Gupta has also given a certificate that he was in fit mental condition to give a statement. P.W.12 Sankatha Prasad Dubey, Tehsildar Magistrate has stated in his cross examination that he did not remember that any one was present with Ram Sajiwan when he reached there for the purpose of recording his statement. There is no evidence on record to show that any tutoring had been done. The dying declaration had been recorded by a Tehsildar Magistrate of Sub Division who is a second class Magistrate. In the dying declaration Ram Sajiwan had given the same version of the incident which has been given by the eye witnesses. Dr. Daya Shankar, learned counsel for the appellants had laid great emphasis upon a sentence in dying declaration wherein Ram Sajiwan has stated that the Daroga Ji (Sub Inspector of Police) was present at the place where the accused had assaulted Deshraj and submitted on its basis that it completely contradicts the eye version account. We are unable to accept the submission of the learned counsel. P.W.11 Nepal Singh S.o. after he reached the place of occurrence had recorded the statement of Ram Sajiwan and thereafter sent him to Police Station and hospital for medical examination. If the dying declaration is read as a while it will show that Ram Sajiwan has stated that the Daroga ji was present and he asked him to proceed to hospital. In fact this is separate sentence and it should not be connected with the sentence where he has mentioned that the accused assaulted Deshraj. He never meant to say that at the time when the accused assaulted Deshraj, Daroga ji was present. In our opinion, Ram Sajiwan was in fit mental condition to give a statement and that his statement is a free and voluntary statement. There is not evidence on record to suggest that he gave the statement upon asking of any body else. To our mind, the dying declaration is absolutely correct and reliable and this alone is sufficient to base the conviction of the accused persons. P.W. 5 Dr. M.K. Gupta was Medical Officer Incharge of P.H.C. Mau and he had examined Anurodh at 3.10 p.m. and Ram Sajiwan at 8 p.m. on 1.9.1980. He had found following injuries on P.W.1 Anurodh. 1. Incised wound 5 cm. x 5 x 7 cm. edges clean cut, sharp margin regular fresh blood is coming out on top of scalp slight Lt. to the midline 12 cm. away and above in straight line from Rt. angle of Lt. eye. 2. Lacerated wound 4 cm. x 1 cm. edges irregular fresh blood is coming out on back of scalp on upper margin of occipital bone just Rt. side of middle 13 cm. away and above from upper portion of Rt. ear. The following injuries were found on Ram Sajiwan:- 1. Penetrating wound (wound of entrance) 4 cm. x 1 cm. through and through to the wound of exit situated on back of Rt. side 4 cm. away and above Rt. iliac crest direction of wound forwarded and anteriarily and downwards through abdominal cavity up to wound of exit. Margin of wound entrance are sharp and inverted. Wound of exit 1.5 cm. x 2 cm. x depth through and through to wound of inlet on lower abdomen lt. side 6 cm. below and towards lt. from umbilicus margin of wound sharp and averted and case is referred to Supdt. District Hospital Banda for internal examination and X-ray, abdomen in erect portion (abdominal). 2. Contusion 5 cm. x 4 cm. Reddish in colour on Lt. side of forehead 2 cm. above the Lt. eye brow. Dr. Gupta has prepared the certificate which he had given on the dying declaration and had also prepared the injury reports of two injured. In his cross examination he has stated that one or two attendants who were sitting with Ram Sajiwan had been removed before recording of the dying declaration. P.W.10 Dr. M.K. Joshi performed post mortem examination on the body of Deshraj on 2.3.83 and had prepared the post mortem examination report which is exhibit k.20. He had found eight incised wounds and four punctured wounds on the body of the deceased. The head was completely chopped of P.W.2 Dr. S.D.S. Chauhan had performed post mortem examination on the body of Ram Sajiwan on 12.9.80, and had prepared the post mortem examination report which is ex-ka 2 on the record. The deceased had sustained two septic wounds and one incised wound. In the opinion of the doctor, the death was due to peritonitis resulting from injuries. It is not necessary to describe the injuries found on the body of the deceased in detail as the same have been mentioned in the judgement of the learned Sessions Judge. The injuries found on the two deceased could be caused by ballam (spear), phrasa, and lathis as stated by the eye witnesses. Thus the ocular testimony is completely corroborated by the medical evidence on record. P.W.8 Ram Gopal who is the scribe of the F.I.R. stated in his examination-in-chief that he did not write any report on the dictation of Anurodh. He however, admitted that the report Ex.ka.1 was written in his hand writing and it bore his signatures. The witness was declared hostile. He admitted in his cross examination that he knew each accused persons from before as they were residents of a village which is only 1 mile away from his village. He also admitted that he is B.A. LL.B and has worked as advocate at Allahabad for ⅘ years but left the profession for the last about one year. He has also admitted that he had knowledge that he was preparing the first information report on behalf of Anurodh. We have considered the statement of this witness. It appears that on account of fear and proximity of his village from the village of accused, he has stated that he did not write any report on the dictation of Anurodh. However he has admitted the F.I.R. Ex. ka.1 to be in his hand writing. It is not understandable as to how the report Ex. Ka.1 was written by him if the same had not been dictated by Anurodh and why he would write such a report. We are satisfied that the F.I.R. was written by him on the dictation of Anurodh. P.W.6 Pursottam Deo Misra, head Constable has prepared the chik F.I.R. Ex. Ka.6 and has stated that the report was lodged at 3 p.m. P.W.7 Parmanand, constable has stated that he carried the body of Deshraj to mortuary. P.W.9 Jugal Kishore Tripathi, S.I. had stated about the proceedings under Section 82/83, Criminal Procedure Code P.W.11 Nepal Singh, S.O. at P.S. Mau has given the details of the steps taken by him during the course of investigation. He has stated that he had collected blood stained earth from the spot which corroborates the version given by the witnesses that incident took place in the field of Deshraj. Nothing material has come out in his cross examination which may discredit his testimony. We have given above the details of the evidence which is available on the record. The testimony of all the three eye witness is completely corroborated by medical evidence. P.W.1 Anurodh is the son of the deceased and is an injured witness his presence at the time of the second incident is also very natural as it was he who was being carried to the police station and hospital when the incident took place. In our opinion, his testimony alone is sufficient to convict the appellants. Testimony of other two eye witnesses. P.W.3 Ram Autar and P.W. 4 Shambhu is also trustworthy and reliable. They corroborate the statement given by P.W.1 Anurodh regarding second incident. The dying declaration of Ram Sajiwan has been recorded by a Tehsildar Magistrate which also gives the details of the prosecution version. There is no conflict of any kind between the eye witnesses account of the incident and the dying declaration. We are also of the opinion that Ram Sajiwan was in fit mental condition to give the statement. The dying declaration is voluntary and truthful statement and not a tutored one. The dying declaration alone is sufficient to base the conviction of the appellants. It may be mentioned that P.W. 11 Nepal Singh S.O. had also recorded statement of Ram Sajiwan in the Police Station which is Ex.ka.25 on the record and this is also admissible as a dying declaration. Though we have no reason to doubt the same but we are placing reliance only upon the statement recorded by P.W.12 Sankatha Prasad Dubey, Tehsildar Magistrate. Thus in this case, there is almost fool proof evidence on record to show that it was the appellant who assaulted Anurodh, Deshraj and Ram Sajiwan. The learned Sessions Judge has rightly convicted them for various offences as the charges were fully established. The learned counsel for the accused has not been able to point out any such infirmity in the evidence on record which may throw even the slightest doubt on the prosecution case. We are therefore, of the opinion that the conviction of the appellants must be affirmed. In the result, the appeal fails and in hereby dismissed. The conviction of the appellants as recorded by the learned Sessions Judge and the sentences awarded to them are affirmed. The bail granted to the appellants had been cancelled on 22.11.1994 when on an earlier occasion the appeal had been dismissed for want of undergo the sentence imposed upon them. After the appellants have been taken in to custody, their sureties and bail bonds shall stand discharged. Appeal Dismissed.;