JUDGMENT

AHMADI, J. :— The appellant Munir Ahmed and 13 others were tried before the learned Sessions Judge, Churu (Rajasthan) for the murder of one Suduleh Khan and for causing injuries to PW-1 Saduleh Khan, son of Jasu Khan and PW-3 Yousuf Khan. The charge framed against the appellant was for commission of offences punishable under Sections 148, 302 and 307/149, I.PC. The learned Sessions Judge convicted the appellant under Section 304, Part I, I.P.C. and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one year. Seven of his companions were also convicted for causing hurt to the prosecution witnesses, but since their convictions are not challenged before us we need say no more about their participation. On appeal the High Court while maintaining, the conviction of the appellant under Section 304, Part I, I.P.C., reduced the sentence to Rigorous Imprisonment for seven years and fine of Rs. 100/-, in default R. I. for one month. The appellant Munir Ahmad was granted special leave by this Courts order dated 5th March, 1979.

2. The brief facts are that on the afternoon of 24th June, 1974 at about 1.30 p.m. while one Allahdin son of the deceased Saduleh Khan was standing beneatha Tali (Sheesham) tree, Niyamat Khan son of Labdhi Khan approached him and enquired why he had abused his mother. On Allahdin stating that he had not used any abusive language, Niyamat Khan lost his temper and abused him. The deceased Saduleh Khan son of Jasu Khan, came out and enquired about the cause of quarrel. Meanwhile Niyamat Khan gave a push to Allahdin, the latter being lame, lost his balance and fell down. Mst. Haliman rushed to the help of Allahdin and reprimanded Niyamat Khan for assaulting a lame person. Niyamat Khan shouted that he would beat him. Thereupon the accused persons and Niyamat Khan son of Ahmed Ali Khan arrived at the spot armed with lethal weapons. The appellant Munir Ahmed and four others were armed with Barchis while the remaining accused persons were armed with Lathis. On seeing the appellant and his associates, including Niyamat Khan son of Ahmed Ali Khan reaching the spot armed with weapons, PW-3.Yousuf Khan, PW-4 Ibrahim Khan and Phule Khan came out of the neighbouring house of Bashir Khan where they were playing cards. PW- 1 Saduleh Khan also rushed out of his house on hearing the cries of maro-maro. The deceased Saduleh Khan was immediately surrounded and attacked. The accused Pir Bux and Gulam Kadar are alleged to have struck blows on the head of the deceased Saduleh Khan with the blunt side of the Barchi. Niyamat Khan, son of Ahmed Ali Khan is also alleged to have inflicted a blow on the left side of the neck of the deceased with the reverse side of the Barchi. Thereafter the appellant gave blows with the sharp side of the Barchi whereupon the deceased fell down. Thereafter Niyamat Khan son of Labdhi Khan struck two Lathis blows, one on the parietal region and the other on the right elbow of the deceased. PW-1 Saduleh Khan and PW-3 Yusuf Khan also received injuries during the said incident when they tried to rescue the deceased Saduleh Khan. After the assault, the assailants left the place of occurrence. PW-3 Yusuf Khan with the help of others took the two injured Saduleh Khans to the Police Station Ratangarh in a Tonga where he lodged the First Information Report at about 2.50 p.m. The Station House Officer registered a case for the commission of offences punishable under Sections 148, 307, 326, and 323 read with Section 149, I.P.C., and commenced the investigation. After reaching the place of occurrence he got the statement of the deceased Saduleh Khan recorded at 3.20 p.m. which came to be admitted as the first Dying Declaration of the deceased at Exhibit P-28. Both the injured and Saduleh. Khans were thereafter sent to S. M.J. Hospital, Ratangarh for treatment. Dr. P. P. Gupta, Deputy Chief Medical Officer, Ratangarh was on duty