JUDGMENT 1. This criminal appeal is directed against the judgment dated July 30, 1988 of the Sessions Judge, Bundi in sessions case No. 1/1987, whereby he convicted the accused appellant (Dhanna) under Section 302 IPC, and sentenced him to suffer imprisonment of life and to pay a fine of Rs. 100/- (Rupees one hundred), in default of payment of fine to suffer simple imprisonment for a further period of three months. 2. Brief facts giving rise to this appeal are that on the basis of `parcha bayan' of Jagdish Chand S/o Ganga Ram Bairwa (since deceased) a case was registered at Police Station-Nayapura (Kota) under Section 302 IPC, as the injured Jagdish subsequently get his life lost on account of injury sustained by him. 3. The prosecution case, as per the parcha bayan of Jagdish Chand, is that at about 8.30 p.m. of December 25, 1986 he was sitting alongwith his brother Lalchand, then accused appellant Dhanna came there and abusing them. It is further alleged that accused Dhanna was furious at that time and he asked as to why he was being abused by the deceased earlier to the incident. As per the statement though the prosecution case is that the appellant gave a blow by a liquor bottle to the deceased on the abdominal part. 4. The prosecution case further is that condition of injured Jagdish became precarious, as such, efforts were made to get his dying declaration recorded by a Magistrate. When Magistrate did not come, the statement of deceased Jagdish was recorded by Dr. Man Mohan Sharma (PW-13). This dying declaration is Ex. P-4. Thereafter, injured Jagdish died. The parcha bayan of Jagdish recorded by Sub-Inspector-Shri Jamal Mohd, is Ex. P-13. The postmortem report of the deceased is Ex. P-17. As per the post-mortem report, the deceased has sustained a single stab wound 11/1" X 3/4" in on the left side of abdomen cavity deep. The intestines were lying out side. The cause of death was opined to be due to haemorrhagic shock as a result of injury to the abdomen and intestines. Dr. Man Mohan Sharma (PW-13), who conducted the postmortem of the deceased, has further stated that the deceased died as there was excessive bleeding. He also stated, in Ex. P-17, that the injury sustained by the deceased was sufficient in ordinary course of nature to cause death. Dr. Man Mohan Sharma (PW-13), who conducted the postmortem of the deceased, has further stated that the deceased died as there was excessive bleeding. He also stated, in Ex. P-17, that the injury sustained by the deceased was sufficient in ordinary course of nature to cause death. He also admitted in cross-examination that Jagdish died on account of lost of blood and because there was no arrangement of blood in the hospital, blood could not be transfused. He also admitted that in a case where there is a lost of blood and intestines come out, the injured should be operated to save his life, but in the present case injured Jagdish could not be operated as blood could not be arranged. He further stated that at the time of operation there is always risk of life and a surgeon does not operate till blood is arranged. Then he definitely stated that if the blood had been made available and the injured had been operated, his life could have been saved. 5. During the trial prosecution examined as many as eighteen witnesses including the alleged eye witness Lal Chand, the brother of the deceased, who was examined as PW-7. However, Lal Chand did not fully support the prosecution case, as such, he was declared hostile. The learned trial Court after placing reliance on the two dying declarations, namely. Ex. P-13 and Ex. P-4, recorded by the Sub-Inspector and the doctor respectively, held the appellant guilty for injury sustained by deceased Jagdish. Consequently, the appellant was convicted and sentenced as indicated above. 6. The learned counsel for the appellant has mainly argued that the offence under Section 302 IPC is not made out in view of the facts and circumstances of the case. Though, he did not challenge the fact that the injury sustained by deceased Jagdish was caused by the appellant, but still we perused the entire material on record including the dying declaration Ex. P-4 recorded by Dr. Man Mohan Sharma (PW-13). 7. After going through the statement of Dr. Man Mohan Sharma (PW-13) as well as Dr. Rajendra Singh Rathore (PW-14), and Dhanna Lal (PW-3), we are convinced that the dying declaration (Ex. P-4) was correctly recoded by the doctor as the Magistrate was not available. Ex. P-4 is in the Question and Answer form. Man Mohan Sharma (PW-13). 7. After going through the statement of Dr. Man Mohan Sharma (PW-13) as well as Dr. Rajendra Singh Rathore (PW-14), and Dhanna Lal (PW-3), we are convinced that the dying declaration (Ex. P-4) was correctly recoded by the doctor as the Magistrate was not available. Ex. P-4 is in the Question and Answer form. It is was recorded in the presence of witnesses, namely, Dhanna Lal (PW-3) and Mangilal (PW-9). The manner in which the dying declaration has been recorded and after going through the entire dying declaration, we are full satisfied that it does not suffer any infirmity. There is no material on record to show that this dying declaration is not voluntary or the deceased was prompted from any person to implicate the accused appellant. Therefore, in our view the learned trial Court did not commit any error in holding that the appellant was responsible for causing the injury to deceased Jagdish on account of which he died. 8. Now the question arises what offence has been made out against the accused appellant which is the main thrust on which the learned counsel for the appellant has concentrated his arguments. Admittedly, there was no previous enemity between the deceased and the appellant. In the dying declaration (Ex. P-4), the deceased has also admitted that the accused appellant was having no enemity with him except there was some ill feeling between them on a petty matter of eating and drinking together. It appears that the deceased was a co-drinker with the appellant. It is also made out of the post-mortem report that deceased Jagdish had consumed liquor at the time of the incident. Therefore, the learned counsel for the appellant is right when he argued that there was no such previous enemity on the basis of which it can be inferred that the accused had a motive to commit murder of the deceased. It also appears that the incident occurred because the appellant was annoyed and furious on account of earlier abuses given by the deceased to him. It is also clear that only a single blow was given to the deceased which is alleged to have been caused by liquor bottle. Though in the subsequent dying declaration (Ex. It also appears that the incident occurred because the appellant was annoyed and furious on account of earlier abuses given by the deceased to him. It is also clear that only a single blow was given to the deceased which is alleged to have been caused by liquor bottle. Though in the subsequent dying declaration (Ex. P-4), the deceased has given that a single blow was given to him but looking to the size of the injury and the entire facts and circumstances of the case it is difficult to infer that the accused appellant had any intention to commit murder of the deceased. It is a case of single blow and that too all of sudden without premeditation. It also appears that the life of the deceased could have been saved in case they have been arranged a bottle of blood in the hospital and he had been operated in time by the doctors. The death has also been occurred due to the excessive bleeding. Further it cannot be inferred that the accused appellant had intented to cause the injury in question. 9. Taking into consideration the totality of the circumstances, the manner in which the incident has taken place and the fact that the accused appellant did not repeat the blow and there was no motive for causing death, we are of the view that the offence under Section 302 IPC cannot be said to have been made out against the appellant. We, however, find the appellant guilty for committing offence under Section 304 IPC. 10. In the result, this appeal is allowed in part, the conviction and sentence of the appellant passed by the trial Court against him under Section 302 IPC is set aside, instead, he his convicted under Section 304-II IPC. We are further of the opinion that the ends of justice will meet if the accused appellant is sentenced to a rigorous imprisonment for seven years with a fine of Rs. 1000/-, in default of the payment of fine, he will be further undergone simple imprisonment for further period of three months. The appellant is in jail. He will serve out the sentence awarded to him by this Court and he will be entitled to get the benefit of Section 428 Cr.P.C. *******