JUDGMENT 1. - This is a murder reference for confirmation of the death sentence awarded by the learned Sessions Judge, Dungarpur, by his judgment dated 1st October, 1986. The accused-appellant has also preferred the appeal against the aforesaid judgment. The learned Sessions Judge has awarded a death sentence under Section 302 I.P.C. with a fine of Rs. 100/-. He has also convicted accused-appellant under Section 392 I.P.C. and sentenced him to 5 years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo six months rigorous imprisonment and under Section 354 I.P.C. to one year's rigorous imprisonment. Thus, both are disposed of by a common order. 2. The facts giving rise to this case are that on 7-9-1985 a FIR was filed at 7 00 p.m. at Police Station, Sagwara, by PW 1 Ramega r/o Vanori that at 12.00 p.m. when he went to the field for grazing the cattle, at that time his daughter Mst. Shankuntala was at the house. In the evening, at about 6 p.m. when he was coming back from the field, one Ratanji informed that the accused Raman has assaulted his daughter Shankuntala in the Gotalawale field and has taken away her ornaments. He rushed to the field and there, he was informed that the villagers have shifted her to the hospital. He went to Sagwara and there, he found that Mst. Shakuntala was being carried on cot to the hospital. There he saw that Mst. Shakuntala was bleeding from her injury. He tried to talk to her, but she was unconscious. She was got admitted in the hospital. This incident was witnessed by Mohanlal and Smt. Ganga w/o Mohanlal. When they reached to rescue the victim, the accused Raman ran away in the fields with the ornaments. It is further stated in the FIR that when Mst. Shakuntala was alone in the Maize field, accused first snatched away the ornaments and, therefore, he tried to commit a rape, Shakuntala cried for the help and accused stabbed her with the knife and ran away from that place. On the basis of this report, case under Sections 394, 376 and. 511 I.P.C. was registered The investigation was taken up and dying declaration of deceased Shakuntala was also recorded Thereafter, Mst. On the basis of this report, case under Sections 394, 376 and. 511 I.P.C. was registered The investigation was taken up and dying declaration of deceased Shakuntala was also recorded Thereafter, Mst. Shakuntala expired on 12th September, 1985, therefore the case was also registered against the accused under Section 302 I.P.C. The blood-stained clothes of Mst. Shakuntala were seized, the accused was arrested and on the basis of the information given by him, ornaments and the knife were recovered. The ornaments were put for identification also. After the close of necessary investigation, police filed a challan against the accused under Sections 394, 302, 376/511 and 326 I.P.C. The case was committed to Sessions. The prosecution examined 13 witnesses and got number of documents exhibited. The learned Sessions Judge, after due trial, convicted the accused under Section 302I.P.C. and awarded him a death sentence looking to the gravity of the offence. Aggrieved against that conviction and sentence, accused-appellant has also filed an appeal as well as the case has been placed for this Court for confirmation of the death sentence. 3. We have heard learned Amicus Curiae for the appellant as well as learned Public Prosecutor and have gone through the record. 4. Learned amicus curiae has urged that the testimony of both eye witnesses, i.e., PW 3 Mohanlal and PW 5 Mst. Ganga is not reliable and in fact they have not witnessed the incident. We have gone through the statements of PW 3 Mohanlal and PW 5 Mst. Ganga. PW 3 Mohanlal has deposed that on relevant day, he was working in his field and when he heard the cries of Mst. Shakuntala, he immediately rushed to the field from where the cry was coming and he saw that accused has stabbed Mst. Shakuntala and was running away with her ornaments in his hand. PW 5 Mst. Ganga has also deposed that she saw the accused running away but looking to the injuries caused to Mst. Shakuntala, she became unconscious and fell down on the ground. Learned Counsel for the appellant has tried to impress that the version given out by both these witnesses is in the serious variation with each other. PW 3 Mohanlal has deposed that as soon as he heard the cries of Mst. Shakuntala he shouted that he is coming. As against this, PW 5 Mst. Learned Counsel for the appellant has tried to impress that the version given out by both these witnesses is in the serious variation with each other. PW 3 Mohanlal has deposed that as soon as he heard the cries of Mst. Shakuntala he shouted that he is coming. As against this, PW 5 Mst. Ganga has deposed that victim in fact cried that somebody should come to rescue her as Raman has killed her and thereafter, she became unconscious. After going through the statement of both the witnesses, it appears that PW 3 Mohanlal, who reached the site, saw the accused Raman running away. He was followed by his wife. Thus, so far as the testimony of PW 3 Mohanlal is concerned, it cannot be doubted. His presence at the scene of the occurrence is not un-natural. He was working in the field at the relevant time, i.e. at 4 p.m. Both the fields are adjacent to each other. As soon as the victim cried, then Mohanlal reached on the scene of the occurrence and saw the accused sitting on the chest of the victim and stabbing her. The incident has happened in such a quick succession that the incident of shouting and the accused hitting the deceased appears to be within a very short space of time. The reaching of PW 3 Mohanlal on the scene within a very short span of time from the adjoining field also cannot be ruled out. Simply because the manner of narration by both the witnesses may not be in exact re-production of the event, by that, it cannot mean that testimony of PW 3 Mohanlal should be discarded. After carefully considering the testimony of PW 3 Mohanlal, it appears that he is truthful witness and he has reached on the scene of the occurrence in time and he definitely saw the accused giving the blow to the deceased. Thus, we find that the testimony of PW 3 Mohanlal is truthful. PW 5 Mst. Ganga, who has also reached the scene, but since she fainted after seeing the whole incident, therefore, it is just possible that she might not have seen the accused. But non-the-less the testimony of PW 3 Mohanlal is trust worth and reliable one. Thus, the contention of the learned Counsel for the appellant is without any merit and is over-ruled. 5. But non-the-less the testimony of PW 3 Mohanlal is trust worth and reliable one. Thus, the contention of the learned Counsel for the appellant is without any merit and is over-ruled. 5. Learned Counsel has further submitted that the dying declaration (Ex. P/19), which was recorded on 7th September, 1985 by PW 12 Abdul Yakub the Investigating Officer should not be acted upon. He has also submitted that there is no certificate attached to the dying declaration by the doctor that the victim was conscious and in a position to give the dying declaration Dr. Mahendra Singh Tyagi has appeared in the witness-box but he has not said a word about the dying declaration. The Doctor has only deposed that on 7th September, 1985 when Smt. Shakuntala was admitted to the hospital, she was conscious at that time of the examination, but she was feeling difficulty in breathing because the blood and air was coming out of the wound. She was given necessary treatment. The counsel for the accused admitted under Section 296 Cr. P.C. the post-mortem report, as such the details of post mortem report was not recorded and the post-mortem report Ex. P 5 was admitted. In Ex. P 5, the cause of death has been said to be due to haemorrhage, shock and toxic shock leading to peripheral circulatory failure. Learned Counsel submitted that the Investigating Officer should have obtained a certificate about the condition from the Doctor and he should have either summoned the Magistrate or an independent witness to record the dying declaration. If the Magistrate or the independent witnesses were not available, then at least at the time of recording the dying declaration, he should have kept two independent witnesses present and got them signed the dying declaration. In the present case, the learned Counsel submitted that the dying declaration has been recorded by PW 12 Abdul Yakub, the Investigating Officer, neither bears a certificate that two independent witnesses were present and signed the same, nor has he obtained any certificate from Dr. Mahendra Singh Tyagi that the deceased was in a position and that she was conscious and in fit condition to give dying declaration. Mahendra Singh Tyagi that the deceased was in a position and that she was conscious and in fit condition to give dying declaration. He has also drawn our attention to Rule 6(22) of the Rajasthan Police Rules, which requires that in absence of Magistrate or independent witnesses, the Investigating Officer may record dying declaration, but he should keep two independent witnesses present. 6. We have given our thoughtful consideration to the dying declaration Ex. P/19. The learned Counsel is right in his submission that in the present dying declaration, no certificate of Doctor has been obtained, nor two independent witnesses have been kept at the time of recording the dying declaration, as required under Rule 6(22) of the Rajasthan Police Rules. But a perusal of Ex P/19, it does show that it bears a signature of the Doctor under his seal Dr. Mahendra Singh Tyagi PW 2. But non-the-less, the prosecution is not absolved of its responsibility that the Doctor should certify that the condition of the victim is such where in she is in a position to give a dying declaration. It is true that in case, the doctor's certificate is not obtained then the Investigating Officer should normally keep two independent witnesses at the time of recording the dying declaration. But in the present case looking to the sequence of the event, it appears that when Mst. Shakuntala was brought to the hospital, according to the testimony of Dr. Mahendra Singh PW 2, she was conscious, though she had a little breathing difficulty. Thus, on account of technical objections, the dying declaration as such cannot be thrown out specially when we have found that the testimony of PW 3 Mohanlal appears to be a reliable and truthful. 7. Learned Counsel submitted the recovery of ornaments and knife is not trustworthy. Learned Counsel has submitted that the ornaments and the knife have been recovered from the open place, therefore, no importance should be attached to it. Learned Counsel has also invited our attention to the fact that the FIR was sent to the Magistrate belatedly. He has also submitted that no bloodstains were taken out from the site. These contentions do not render the prosecution story improbable specially when we have found that the testimony of eye-witness is reliable and the dying declaration Ex. P/19 cannot be said to be wrong. 8. He has also submitted that no bloodstains were taken out from the site. These contentions do not render the prosecution story improbable specially when we have found that the testimony of eye-witness is reliable and the dying declaration Ex. P/19 cannot be said to be wrong. 8. Learned Counsel has lastly submitted that the injury caused to the deceased by the accused was a single blow and in fact the accused did not intend to cause death and if he bad really intended to cause the death, then there was nothing to prevent him to repeat the blow. Learned Counsel submitted that intention of the accused might be to rob and not to cause the death of the deceased. He further submitted that according to the Doctor, one of the cause for death is a toxic effect along with the haemorrhage and shock, which has led to peripheral circulatory failure. Thus, learned Counsel submitted that in these circumstances, the offence cannot travel beyond Section 304, Part-II and he has invited our attention to Ramaswami v. State of Tamil Nadu ( 1982 1 SCC 474 ) ; Gokul Parashram v. State of Maharashtra (1981) SCC (Cr) 731 ; Dungar v. The State of Rajasthan 1984 RLW 163 ; and Kachhawa v. State of Rajasthan 1985 RLW 97 . We are impressed by this argument. It is true, no hard and fast rule can be laid down as each case depends on its own facts. In the present case, the accused has only given a single blow and did not repeat the same, the deceased has died after five days and one of the cause of the death was a toxic shock. Looking to these peculiar facts of the case, we are inclined to convert the conviction of the accused from 302 to 304 Part-II, I.P.C. and sentence the accused to 8 year's rigorous imprisonment. The conviction of the accused under other sections is maintained. All the sentences shall run concurrently. The confirmation of death sentence is negatived and the appeal of the accused-appellant is allowed in part, as indicated above. All the ornaments may be returned back to the father of the deceased.Appeal partly allowed. *******