Hon’ble Vinod Prasad, J.—Two appellants, father and son, Asha Ram and Suresh, have challenged their conviction under Section 304 IPC with implanted sentence of five years, recorded by Session’s Judge, Mainpuri in two connected S.T.s, No. 129/1980, State v. Asha Ram and S.T. No. 130 of 1980, State v. Suresh, vide impugned judgment and order dated 28.7.1981, in the instant appeal.

2. Stated briefly, unfolded background facts were that Jauhari and Mooley were real sibling brothers. Appellant Asha Ram is the son of Jauhari whereas appellant Suresh is his grandson, being son of Asha Ram. Siyaram deceased was the son of Mooley and so he was the cousin of appellant Asha Ram. P.W.1 Smt. Ram Poti is the wife of deceased Siyaram and Prem Chand is their son. There was one co-villager Pahunchi Lal, whose son and daughter-in-law were Nathu and Molshri. Mooley, Jauhari and Pahunchi Lal had a joint agricultural holding, half of it belonged to Pahunchi Lal whereas rest half were shared by Mooley and Jauhari. It transpires that after the death of Nathu, Molshri married Asha Ram. Pahunchi Lal had taken Prem Chand in adoption. Being collaterals and having lust for property, there were immovable property litigations going on between appellants and deceased in the aforesaid jumbled relationship. It is alleged that because of pending Court cases and harbingered animosity, on 13.12.1978 at 12midafternoon,Siyaram was belaboured by the appellants with wooden cot slats, when he was erecting a ridge (mend). Many villagers intervened in the assault and saved Siyaram.

3. Brijendra Singh, P.W.2, himself, scribed a written report, Ext. Ka-1, about the incident, as was witnessed by him, and then read it out to the injured Siyaram, who approved of it and affixed his thumb impression on it, and thereafter P.W.2 carried it alongwith Siyaram to PS Barnahal and lodged it.

4. Constable Clerk Abhai Raj P.W.4, on the basis of Exhibit Ka-1, registered non-cognizable report, Exhibit Ka-2 and prepared relevant GD entry Exhibit Ka-3, noting therein injuries sustained by the injured. Preparing request letter for medical examination, injured was sent for medical treatment by P.W.4.

5. Dr. M.L. Agrawal, P.W.6, medically examined the injured on 14.12.1978 at 1.30 pm, in Civil Hospital, Shikohabad, who was brought to him by his nephew Navin Chand and had admitted him in the hospital. At that time injured was conscious but was not speaking. Following facts were noted by the doctor in the medical examination report of the injured vide Exhibit Ka-9 :

“Exhibit Ka-9

Examined Siya Ram aged about 40 yrs. S/0 Mool Chand R/o Solipur, P.S. Barnahal, District Mainpuri brought by his nephew Navin Chandra and found the following injuries on his body. (Time 1.30 p.m. 14.12.78).

M.I. (1) Three black moles near each other on 1" area of middle of right collar bone.

(2) Traumatic swelling diffuse on right temple and right and quadrant of head - right side.

(3) Contusion with abrasion 3" X 1" red with soft brown seal on abrasion on right shoulder blade.

(4) Bleeding from right ear - Clotted blood seen.

Opinion : Both injuries have been inflicted by hard blunt weapon. Duration about one day old.

Inj. No. 1 is under observation head injury and bleeding from ear.

Inj. No. 2 is simple.”

6. According to doctor’s testimonies, condition of the injured was improving from 14th till 17th, but all of a sudden, in the evening of 17th at 4.00 p.m. it started deteriorating because of cerebral irritation. Sensing his condition to be critical and serious, next day (18.12.1978), doctor P.W.6 sent a memo at 1.45 p.m. for recording of his dying declaration, which was recorded by Tahsildar Magistrate same day at 2 p.m. vide Ext. Ka 17. Doctor, P.W.6, had appended a certificate, Ext. Ka 10, regarding fit condition of the injured to give his declaration. In the said D/D injured had stated that he was assaulted by the appellants by slats on Wednesday in morning because of dispute with Asha Ram for opening a