BYAS, J.—This is a jail appeal by accused Bhaggha against the judgment of the learned Sessions Judge, Udaipur, dated January 11, 1979 convicting the appellant u/s 302 I.P.C. and sentencing him to imprisonment for life. 2. Briefly stated the prosecution case is that the deceased victim Bhima was the real uncle of the accused-appellant Bhaggha. They resided in village Majra, Kendriabore, P.S. Bekria, Distt. Udaipur. In the evening of 26.12.72 the deceased victim and the accused picked up certain quarrel and they quarreled with each other. After some time the accused shot an arrow towards Bhima which hit him in the left side of his chest. The injury proved fatal. Bhima passed away instantaneously on the spot P.W.7 Teja went to Police Station Bekria and verbally lodged report Ex. P/8 of the occurrence at about 1.00 A.M. on 27.12.72. The policy registered a case and took up the investigation. The Investigating Officer arrived on the spot of occurrence and prepared the inquest report and seized the blood stained soil from there. The postmortem examination of the victims dead body was conducted by P.W.I Dr. Khyali Lal the then Medical Officer Incharge, Govt. Dispensary, Gogunda, by 1.00 P.M. on 28.12.72 and the Doctor noticed the following wounds on the victims dead body:– "1. EXTERNAL APPEARANCE 1. Condition of subject-stout, emaciated, decomposed, & c-Stout, Rigor mortis present Nail, Pale. 2. Wounds-position, size character 3. Bruises-position, size nature (1) Stabbing wounds 1" x1/4" x 3-1/2" spindal shaped, one angle is sharp margins are inverted, on probing wound directs back wound and slightly upward and inward, situated 1-1/2" above and medial to left nipple. (2) Wound 1-1/2" x 3/4" above left elbow joint posterior aspect. (3) Wound 1" x 3/4" on elbow joint posterior aspect. 4. Mark of ligature on neck, dissection & c. 5. Condition of pupils. Eyes half opened, conjuctives pale cornea luster less and opaque pupils dilated. III. THORAX 1. Walls, Ribs and Cartilages.2. Pleurae6. Pericardium7. Heart. - There is wound in thoracic wall 1" x 1/4"x 3-1/2" in third intercastal space left side passing to thoracic cavity at middle and lower border of left third rib. Third rib is fractured at mid point. Thoracic covity is filled with dark coloured fluid blood and blood clots. Pericardium and Heart covered with clotted blood. Pleurae6. Pericardium7. Heart. - There is wound in thoracic wall 1" x 1/4"x 3-1/2" in third intercastal space left side passing to thoracic cavity at middle and lower border of left third rib. Third rib is fractured at mid point. Thoracic covity is filled with dark coloured fluid blood and blood clots. Pericardium and Heart covered with clotted blood. There is wound 3/4" x 1/4" in left ventricle, left side is empty right side contains small amount of dark coloured fluid blood. 3. Laynx and tracheae - Healthy 4. Right lung - Healthy 5. Left lung - Healthy 8. Large vessels - Healthy." 3. In the opinion of Dr. Khyali Lal the cause of death of the victim was shock & excessive internal haemorrhage from heart wound. He issued Post-Mortem Examination Report Ex. P/l. The accused absconded after committing the offence and remained absconding for a pretty long time. He was ultimately arrested on 7.12.76. 4. The police submitted a challan against him in the court of Addl. Munsif and Judicial Magistrate (3), Udaipur, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge u/s 302 LP C. to which he pleaded not guilty and faced the trial. 5. During trial the prosecution examined 9 witnesses and filed some documents. In defence the accused examined one witness. The defence taken by him was that of elibi. On the conclusion of trial the learned Sessions Judge found the charge duly proved against the accused-appellant. No merit was found in the defence put forward by the defence witness. The accused was convicted and sentenced at the very out set. 6. We have heard Shri Suresh Kumbhat, the learned Amicus-curiae for the accused-appellant and the learned Public Prosecutor. We have also gone through the case file carefully. 7. Before proceeding further we may point out that the evidence against the accused is that of the dying declaration of the deceased-victim Bhima alleged to have been made by him before P.W.4 Harma and P.W.5 Kalu. Both these witnesses stated that on hearing the cry they reached the place of occurrence. Bhima was lying in an injured condition. He told them that accused Bhaggha had shot an arrow to him and thereby he had sustained the injury on his chest. Both these witnesses stated that on hearing the cry they reached the place of occurrence. Bhima was lying in an injured condition. He told them that accused Bhaggha had shot an arrow to him and thereby he had sustained the injury on his chest. Both these witnesses also stated that at that very time they had seen the accused running away from the scene of occurrence. 8. It was vehemently contended by the learned Amicus-curiae that the testimony of these two witnesses relating to dying declaration was strongly relied upon by the court below. It was argued that both these witnesses were closely related to the deceased-victim-Bhima, as such, it would not be free from risk in basing the conviction on the testimony of these two witnesses. It was also argued that dying declaration is a weak type of evidence and should not be readily accepted unless corroboration from independent source is forthcoming. 9. In reply the learned Public Prosecutor supported the judgment of the court below and submitted that the testimony of these two witnesses is not open to any challenge. The conviction of accused can be made on the basis of dying declaration alone. 10. We have taken the respective submissions into consideration. We may point out that a dying declaration can be made the basis of conviction provided the witnesses stating about it are reliable and their credibility is above board. It is true that P.W.4 Harma and P.W.5 Kalu who have deposed about the dying declaration are close relatives of the deceased victim. But this factor alone does not detract from the evidentiary value to be given to their testimony. Both these witnesses were cross-examined but nothing can be extracted which may induce us to hold them as false or unreliable witnesses. There is nothing on record to show that both these witnesses were in enmity against the accused or are on inimical terms with him so as to falsely rope him in on a false charge and that too like murder. The court below accepted their testimony as true and we find no good and cogent reason to take a different view. The testimony of these two witnesses is, therefore, sufficient to draw us to the conclusion that accused Bhaggha shot an arrow at the deceased-victim Bhima and thereby caused his death. 11. The court below accepted their testimony as true and we find no good and cogent reason to take a different view. The testimony of these two witnesses is, therefore, sufficient to draw us to the conclusion that accused Bhaggha shot an arrow at the deceased-victim Bhima and thereby caused his death. 11. It was next argued by the learned Amicus-curiae that the offence made out is not covered by Sec. 300 I.P.C but falls u/s 304 Part II I.P.C. It was argued that deceased was the real uncle of the accused. There was no bad blood between them before this occurrence. It was also argued that the victim and the accused are tribals and they picked up quarrel on trival matters As such, the intention to commit murder is completely missing in the case. It was also argued that the offence was committed in a heat of passion. 12. we have taken the contention into consideration and find considerable force in it. Admittedly there was no bad blood between the deceased victim and the accused-appellant. The quarrel between them suddenly took place. Generally a member of the tribal community keeps bow and arrow with them. They ultimately use it without intending any serious consequence. 13. In these circumstances, we are unable to hold that the accused had the intention to commit the murder of the deceased victim Bhima. At the most what we can say is that the accused had a knowledge that by his act he would be causing the death of the victim. As such, in our opinion, the case is not covered by first two clauses of sec. 229 I.P.C. The case is covered by the 3rd clause of sec 299 I.P.C. and the offence made out is punishable under Part II of Sec 304 I.P.C. 14. In the result we partly allow the appeal of accused Bhaggha. His conviction and sentence u/s 302 I.P.C. are set aside and instead he is convicted u/s 304 Part II I.P.C. and is sentenced to 7 years rigorous imprisonment. In case he has served out the sentence in full, he shall be immediately set at liberty if not wanted in any other case.