Judgment ABHIRAM SINGH, J. 1. The sole appellant has been convicted under S. 302/34 of the Indian Penal Code and has been sentenced to imprisonment for life. 2. The fardbeyan of the informant, Raja Rao, (the deceased) was recorded in Rajendra Medical College Hospital on 27-5-1981 at 10.30 a.m. On the basis of this fardbeyan, a formal F.I.R. was drawn up. According to the Fardbeyan, the case of the prosecution is that the informant Raja Rao had gone to his brother, D. D. Rao (the appellant) at Patratu where he was an employee of Rolling Factory and used to live in a quarters of that factory. Further case of the prosecution is that the deceased along with the appellant (his elder brother) and his mother came to Ranchi by a bus. They stayed at Ranchi Railway station as they had to catch a train for going outside. One Loknath, a friend of the appellant, came to Ranchi Railway station. The appellant and his friend Loknath asked the deceased to accompany them when they were going to Railway colony for taking drink. The informant went along with them to the Railway colony near the Railway station. At that place, the appellant and his friend Loknath took Haria and also asked the deceased to take the same. The deceased refused to take Haria and, thereafter, there was altercation among them. Then they proceeded towards the Railway station from that place and on the way the appellant with the help of his friend assaulted the deceased with a knife which hit him at his abdomen and near his ear. Thereafter, the deceased reached the station somehow or other. When he reached the station in injured condition, he did not find his mother. He could not know as to how he was brought to the hospital at the time his fardbeyan was being recorded. The trial proceeded before the judicial Commissioner, Ranchi, and it ended in conviction and sentenced as mentioned above. 3. Learned counsel for the appellant has submitted that in the instant case, the finding of the learned court below is based on three dying declarations. He has further submitted that there are so many contradictions in the dying declarations made at different times and so the same should not have been relied upon. 3. Learned counsel for the appellant has submitted that in the instant case, the finding of the learned court below is based on three dying declarations. He has further submitted that there are so many contradictions in the dying declarations made at different times and so the same should not have been relied upon. He has also submitted that in a case in which there is no eyewitness and the conviction is based only on the dying declaration, the same should be scrutinised with due caution. He has also submitted that two of the charge-sheeted witnesses have been examined by the defence and the statements made by these defence witnesses do not support the statements made in the dying declarations by the deceased at different times. There is no room for doubt that if any conviction is based on dying declaration, then it must be properly examined. In the instant case, I find that the dying declarations of the deceased at different times are not such which do not inspire confidence. The first dying declaration is the statement made by the deceased before a constable (P.W. 8) who was posted at the Ranchi Railway station. The second dying declaration is the fardbeyan of the deceased which was recorded at the Rajendra Medical College Hospital, The third dying declaration is the statement of the deceased which he made before the Investigating Officer and it has been marked as Ext. 7. The learned counsel has contended that the dying declaration which is marked as Ext. 7 should not be relied upon as this is the statement of the deceased made before the Investigating Officer and according to the decision of the Supreme Court, such dying declaration should be discouraged. Assuming for the moment that dying declaration mentioned in Ext. 7 should not be considered then the other two dying declarations have to be considered. Even if the third dying declaration mentioned in Ext. 7 is discharged, I have to consider whether there is any discrepancy in the remaining two dying declarations. According to the learned counsel for the appellant, in the first dying declaration, the name of Loknath, the friend of the appellant, has not been mentioned, whereas the name of Loknath has been mentioned in the fardbeyan which was recorded in the hospital. According to the learned counsel for the appellant, in the first dying declaration, the name of Loknath, the friend of the appellant, has not been mentioned, whereas the name of Loknath has been mentioned in the fardbeyan which was recorded in the hospital. From the perusal of the evidence adduced in court, it appears that the statement of the deceased could not be recorded at the police station when he reached there as he was not in such a condition that he could make any statement. Therefore, the deceased was first taken to Sadar Hospital and therefrom he was taken to Rajendra Medical College Hospital. It is, therefore, quite clear from the evidence that the fardbeyan of the deceased was recorded in the hospital when he was quite in sense. The circumstances regarding the first dying declaration at the Railway station, Ranchi itself indicate that the deceased was in great agony and pain as he had received the injury only some time before making the statement. If in such circumstances, he omitted the name of the friend of his brother, it cannot be said that it is very vital contradiction. There are several other circumstances with which I will deal subsequently and the same support that the dying declarations are reliable. 4. If there is any dying declaration, which is only oral, much significance cannot be attached to it. But, in the instant case. I find that the dying declaration has been reduced to writing, although not by a Magistrate, but, by way of a fardbeyan. The learned counsel for the appellant has submitted that the death occurred on 31st of May, 1985, that is, four days after the fardbeyan was recorded. It is, therefore, quite clear that the police officer who was recording the fardbeyan of the deceased might not have thought it necessary seeing the condition of the deceased that his statement should be recorded by a Magistrate as dying declaration and, therefore, he did not take steps for the same. But, according to S. 32(1) of the Evidence Act, any statement of the deceased before his death, is bound to be treated as dying declaration. Only because the death occurred four days after the recording of the fardbeyan it cannot be said that no value can be attached to the fardbeyan which has been treated as a dying declaration. But, according to S. 32(1) of the Evidence Act, any statement of the deceased before his death, is bound to be treated as dying declaration. Only because the death occurred four days after the recording of the fardbeyan it cannot be said that no value can be attached to the fardbeyan which has been treated as a dying declaration. The person who wrote the fardbeyan has been examined as P. W. 6. P.W. 6 is the police officer who had subsequently investigated the case and he had gone to the hospital along with P.W. 2, who was the police officer posted at Chutia police station at that time. Fardbeyan of the deceased was recorded at the instance of P.W. 2 by P.W. 6, another police officer of that police station. It is, thus, quite clear that P.W. 2 and P.W. 6 both police officers were present at the time when the fardbeyan of the deceased was being recorded. I have carefully gone through the evidence of P.W. 2 and P.W. 6 and I do not find any reason to discard their evidence. P.W. 2 has also signed on the fardbeyan while forwarding the fardbeyan to the police station. It does not stand to reason as to why these two responsible police officers will fabricate any document against the appellant. There is no suggestion even on behalf of the defence as to why these two responsible police officers will fabricate any document against the appellant. 5. Learned counsel for the appellant has placed much reliance on the statements of two witnesses who have been examined on behalf of the defence. I would, therefore, like to consider the evidence of D.W. 1 who was also a constable posted at the Railway station at the time of the alleged occurrence, and D.W. 2 is the rickshaw puller who carried the deceased on his rickshaw to the police station. D.W. 1 has, of course, said in his evidence that on his enquiry, the deceased told him that he had taken wine and he should be reached to Chutia police station. According to him, the deceased did not disclose the name of the assailant. D.W. 2 has said that he carried the deceased to the Chutia police station on his rickshaw. He has further said that when he enquired from the deceased about the name of the assailant, he did not disclose it to him. According to him, the deceased did not disclose the name of the assailant. D.W. 2 has said that he carried the deceased to the Chutia police station on his rickshaw. He has further said that when he enquired from the deceased about the name of the assailant, he did not disclose it to him. Thus, according to the learned counsel for the appellant, it was expected that D.W. 1 should have also supported the statements made in the first dying declaration in which it is said that the deceased had disclosed the name of the assailant to another constable P.W. 8. Now the question before me is whether reliance should be placed on the testimony of D.W. 1 or P.W. 8. There are reasons for which I am inclined to place reliance on the testimony of P.W. 8 and not on the testimony of D.W. 1. The testimony, of P.W. 8 gets support from other facts and circumstances of the case. The second dying declaration also supports the statement made by P.W. 8 to a considerable extent. I have already discussed that although in the first dying declaration, the name of one assailant was not mentioned and have given the reason for the same. It has been contended by the learned counsel for the appellant that in the second dying declaration, there is no mention that the deceased at all made any previous statement before any constable. In my opinion, this contention has got no meaning at all. It was not necessary for him to make this statement at the time his fardbeyan was being recorded that he had made any statement earlier before any constable. It is also surprising that D.W. 1 being a constable and charge-sheeted witness, has not turned up on behalf of the prosecution. It has come on record as to in what circumstance, D.W. 1 was examined by the defence. The learned court below has rightly given the reasons for disbelieving D.W. 1 that it is on record that the prosecution exhausted all the steps for getting D.W. 1 examined as a prosecution witness but the defence succeeded to examine him as a defence witness. On the one hand D.W. 1 is making a different statement whereas on the other hand, the three responsible police officers that is P.Ws. 2, 6 and 8 are making almost similar statements supporting the dying declarations. 6. On the one hand D.W. 1 is making a different statement whereas on the other hand, the three responsible police officers that is P.Ws. 2, 6 and 8 are making almost similar statements supporting the dying declarations. 6. In the circumstances of the case, much reliance can also not be placed on the testimony of D.W. 2 who is a rickshaw-puller and has simply said that the deceased did not disclose to him the name of the assailant. I have already discussed above that the deceased was in great pain and he was almost unconscious when he reached the police station on the rickshaw and so it is not surprising if he did not disclose the name of the assailant to the rickshaw puller (D.W. 2). Hence, even if I discard the third dying declaration, that is, Ext. 7 for the moment, there is is no reason not to rely on the first and and second dying declarations, that is, the first statement before P.W. 8 and the second dying declaration by way of fardbeyan. 7. The doctor who held post-mortem examination on the dead body of the deceased has been examined as P.W. 4. His statements also completely support the statements made by way of dying declaration. There does not appear any reason as to why a younger brother will try to falsely implicate his elder brother without any motive. According to the learned counsel for the appellant, the most important witness was the mother of the deceased. There is nothing on record to show that any dying declaration was made before the mother or that she was an eye-witness to the occurrence. The only evidence which the mother could have given is that she along with her two sons had come to Ranchi from Patratu by a bus. This was not a very important aspect of the case. Besides this, the mother is a mother after all and she would not like to depose against her own son. Hence, the non-examination of the mother also is of no avail to the defence. 8. Learned counsel for the appellant has also submitted that Loknath should have either figured as an accused or as a witness. But, he has neither figured as an accused nor as a witness. From the charge-sheet, it appears that Loknath was not sent up for trial. 8. Learned counsel for the appellant has also submitted that Loknath should have either figured as an accused or as a witness. But, he has neither figured as an accused nor as a witness. From the charge-sheet, it appears that Loknath was not sent up for trial. It was not necessary for the prosecution to cite him as a prosecution witness. In the instant case, I am only concerned with the appellant. This court has only to see whether the charge levelled against the appellant has been proved beyond all reasonable doubts. So far as the appellant is concerned, in my opinion, the allegations against him have been amply proved. 9. Learned counsel appearing for the appellant has further submitted that the appellant can be said to be guilty utmost under Part II of S. 304 of the Indian Penal Code. He has submitted that the appellant is the brother of the deceased and there is no evidence on the record that the alleged murder was committed for any financial gain. He has further submitted that the deceased did not die instantaneously, rather he died several days after the alleged assault. A knife-blow is said to have been given on the abdomen of the deceased. Considering the facts and circumstances of this case, it is amply clear that the appellant assaulted the deceased when he was in drunken state and it does not appear that he had any intention to cause the death of his younger brother. I, therefore, find substance in the contention raised by the learned counsel for the appellant that the charge under sec. 304 Part II of the Indian Penal Code has been only proved against the appellant. I, therefore, alter the conviction of the appellant and convict him under sec. 304 Part II of the Indian Penal Code. So far as the awarding of sentence is concerned, it also appears just and proper that a lenient view should be taken. In the circumstances of the case, the appellant is sentenced to undergo rigorous imprisonment for a period of five years. 10. In the result, the appeal is dismissed with the aforesaid modifications in conviction and sentence. M.P.VARMA, J. 11 I have had the advantage of hearing the judgment delivered by my learned brother. He has in a very lucid manner narrated the facts of the case and also the law involved therein. 10. In the result, the appeal is dismissed with the aforesaid modifications in conviction and sentence. M.P.VARMA, J. 11 I have had the advantage of hearing the judgment delivered by my learned brother. He has in a very lucid manner narrated the facts of the case and also the law involved therein. I quite agree with him. 12. The learned counsel for the appellant, Sri A. K. Banerjee, was right in his argument that the case squarely falls under sec. 304 Part II of the Indian Penal Code and the appellant, in the circumstances of the case, deserved some leniency in the sentence and my learned brother has, therefore, rightly thought of altering the conviction to one under sec. 304 Part II I.P.C. 13. Since Mr. Banerjee in course of his argument made a grievance that the trial court wrongly admitted Ext. 7, the dying declaration recorded by the Investigating Officer, I would like to add a few words of my own on this point. It is true that if a dying declaration is found to be free from any influence, it can well be acted upon independent of any corroboration to hold the accused guilty of the charge. The dying declaration is a statement relating to the cause of the death. The court has only to examine the nature of the injury sustained, the state of the mental faculty of the declarant, the manner of his speech, whether coherent or otherwise or such attending circumstances, before acting solely on the dying declaration. Here I will also add that if time permits, it is always advisable to get it recorded by a Magistrate, if available. I may further add that such recorded statement even if it does not reproduce the exact words of the maker, but if the substance of the statement has been correctly recorded and does not contain any infirmity, it may be accepted as relevant for the purpose of the case and is admissible in evidence as such. All that a court has to do is to find out that the deceased/declarant correctly named his assailant when he was very much apprehensive of his death and was likely to die due to the injuries inflicted to him. 14. All that a court has to do is to find out that the deceased/declarant correctly named his assailant when he was very much apprehensive of his death and was likely to die due to the injuries inflicted to him. 14. Any F.I.R. drawn up on the statement of a dying man is not hit by S. 162 of the Code of Criminal Procedure as it is only thereafter that the police investigates the case; rather gets jurisdiction to proceed with the investigation of a cognizable offence. I am further of the view that even in the process of investigation, if the Investigating Officer records the statement of a dying man, it becomes relevant under S. 32(1) of the Evidence Act which is a sort of exception to the general rule of the relevancy of evidence and I feel that S. 162(2) of the Criminal P.C. does not put any bar in considering such dying declaration in evidence. Similar view has been expressed by the Supreme Court in the case of Tapinder Singh V/s. State of Punjab AIR 1970 SC 1566 : (1970 Cri LJ 1415). But, so far as the instant case is concerned, my learned brother has rightly said that even if Ext. 7 is excluded from consideration, it causes no sufferance to the prosecution story which has substantially been proved from two earlier statements made by the declarant/deceased, Raja Rao, one at Railway Platform and the other in the Hospital which was taken down as fardbeyan on the basis of which a formal F.I.R. was drawn up and the case was registered. The appeal, therefore, has been rightly dismissed.