JUDGMENT 1. - Appellant, Amar Singh, has been convicted under Section 302. IPC sentenced to undergo imprisonment for life with a fine of Rs. 100/- (in default, to undergo further one month's R.I.). His conviction & sentence are being assailed in this appeal. 2. First information report (Ex. P. 15) was chalked out on the basis of a Parcha Bayan of an injured, Ata-ullau Khan, admitted in S.M.S. Hospital, Jaipur, in Ward No. 3-G, on 27.2.87. The said Parcha Bayan (Ex. P. 5) was recorded by Mahavir Prasad Sharma, ASI, P.S Bani Park. It had been stated therein that on 27.2.87 at about 3.30 p.m. When Ata-ullau Khan was near Sindhi Camp bus station he was intercepted near Chandragupt Hotel by Amar Singh (appellant) alongwith his three companions, Gulab, Pappu Gurjar & Sanwar Khan alias Nosiyar and that they started hurling abuses and then in order to kill him, Amar Singh opened assaults by inflicting knife blows on his person at his abdomen & waist, while other companions gave beating with kicks-fists besides infliction of stick blows on his person. 3. Ata-ullau Khan expired in the hospital on March 9, 1987. Before his death, even on the very day when his Parcha Bayan was recorded by the police officer, another statement in the shape of dying declaration (Ex. P. 3) was also recorded of Ata-ullau Khan by Judicial Magistrate, No. 9, Jaipur City Jaipur, at about 8.45 p.m. on 27.2.87 in the hospital in the presence of Dr. Shiv Ratan Kochar. 4. After registration of criminal case for offences punishable under Section 302 & 34, IPC, against the accused, Sanvar Khan, Gulab, Pappu Gurjar, & present appellant. Amar Singh, the police started investigation and after usual investigation and its completion, it filed a charge-sheet against the afore-named four accused out of whom two, namely, present appellant, Amar Singh & Gulab were produced in court, showing other two as absconder. After committal proceeding's, the accused were committed to Court of Sessions. Present appellant & Gulab were tried by the trial Court for the charges framed against them for offences punishable under Section 302/34 IPC. In all 15 witnesses were examined by the prosecution said. After committal proceeding's, the accused were committed to Court of Sessions. Present appellant & Gulab were tried by the trial Court for the charges framed against them for offences punishable under Section 302/34 IPC. In all 15 witnesses were examined by the prosecution said. Both the accused were examined under Section 313, Cr.P.C. The trial Court, under its judgment dated 23rd February, 1991, though acquitted accused, Gulab, of the offence charged under Section 302/34, IPC, but convicted present appellant under Section 302, IPC, & sentenced thereunder, as stated at the very threshold of this judgment. 5. Undisputedly, out of 15 witnesses, two witnesses, namely, Naushad (PW 1), & Pappu alias Mohd. Umar (PW 10) were examined by the prosecution as eye witnesses but both of them turned hostile. It is also not in dispute that the trial Court based its judgment convicting the appellant on circumstantial evidence such as recovery of blood-stained clothes, knife, etc., besides two dying declarations of Ata-ullau Khan (since deceased) recorded by the police & the judicial Magistrate. 6. We have heard the learned counsel for the parties and perused the record. 7. Learned counsel for the appellant assailed the dying declarations by pointing out infirmities & inconsistencies which according to them, have crept therein and further by contending that they are not admissible in evidence because of their having been recorded without observing formalities & procedure necessarily to be adopted while recording such declarations. Learned counsel then added that these declarations having not been recorded by the recorder in the form of questions & answers, are of shaky in nature and on reliance thereupon can independently be placed nor they are worthy of credence and acceptance so as to base the impugned conviction. 8. Taking the aid of the above, learned counsel on behalf of the appellant then urged that the trial Court has erred in ignoring the inconsistencies which have crept in the dying declarations, and further erred in observing that in both the dying declarations, the deceased had not only specifically given out name of the present appellant but also assigned specific overt-act of the appellant by stating therein that the appellant inflicted knife blows on the vital parts of his body. 9. Next contention on behalf of the appellant was that in the case at hand, neither in post-mortem report (Ex. P. 4) nor in the injury report (Ex. 9. Next contention on behalf of the appellant was that in the case at hand, neither in post-mortem report (Ex. P. 4) nor in the injury report (Ex. P. 19) nor in the evidence of the doctor who medically examined the deceased while giving post-mortem and injury reports, there is any averment that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause his death. Taking the aid of the above facts, learned counsel argued that in the absence of the evidence of an expert, the trial Court erred in holding the appellant guilty of the offence punishable under Section 302. IPC. 10. Learned Public Prosecutor, merely reiterated the reasons assigned by the trial Court for the impugned conviction and thus supported the impugned judgment. According to him, in view of the findings arrived at by the trial Court, the contentions urged by the learned counsel for the appellant are devoid of any merit. 11. Having considered the rival contentions canvassed on behalf of both the parties, and perused the record and the judgment in question, in our view, unquestionably, in the case at hand, the only evidence brought on record against the present appellant is of dying declarations (Ex. P. 3 & P. 5) and its allied corroborative evidence in addition to recovery evidence. 12. It is not in dispute that Ata-ullau Khan (deceased) died in the impugned incident on account of the injuries sustained in it. The dispute is that the injuries found on his person were not sufficient in the ordinary course of nature to cause his death. Thus, it cannot be denied that the deceased has not sustained the injuries found while injury report (Ex. P. 19) was prepared and autopsy of the deceased was conducted vide post mortem report (Ex. P. 4). From the evidence of the doctor who medically examined the deceased, it is clear that the deceased sustained injuries as found by him in the reports (Ex. P. 4 & P. 19) and succumbed to his injuries. P. 19) was prepared and autopsy of the deceased was conducted vide post mortem report (Ex. P. 4). From the evidence of the doctor who medically examined the deceased, it is clear that the deceased sustained injuries as found by him in the reports (Ex. P. 4 & P. 19) and succumbed to his injuries. Thus viewed, in our view, the questions which are to be answered in this case are as to whether the injuries found on the person of the deceased were inflicted by the appellant and whether the injuries were sufficient in the ordinary course of nature to cause the death of the deceased, and whether the appellant has rightly be convicted by the trial Court. For these questions, the learned trial Court placed reliance on the dying declarations consisting of Ex. P. 5 & P. 3. 13. Before we dwell on merits and deal with the present controversy wrung out from the rival contentions of the parties, we think it proper to have a look at the principles of law regarding the nature and character of proof of evidence of dying declaration and to see whether the conviction can be sustained solely on the evidence of dying declaration ? 14. In Godhu v. State of Rajasthan (AIR 1974 SC p. 2188), their Lordships of the Supreme Court observed that it is not correct to hold that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. According to the Apex Court, the whole of the dying declaration can only be rejected in cases wherein the part of it which is not found to be correct, is so indissolubly linked with the other part that it is not possible to sever the two parts. It has also been held that in cases wherein the two parts of a dying declaration may be severable and the correctness of one part would not depend upon the correctness of the other part, and in that situation, the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true unless the part relied upon is corroborated in material particulars by other evidence on record. Thus, according to the Supreme Court, if such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. 15. In Surat Singh v. State of Punjab ( AIR 1977 SC 705 ) , while dealing with two dying declarations, their Lordships of the Supreme Court held that first dying declaration, a short version of occurrence given by injured under great pain and agony after arrival at hospital is nothing but truth, and the fact that details given in second dying declaration might not have been given by the victim does not detract in the least from the veracity and truthfulness of the statement of the deceased contained in dying declaration. 16. Similarly, the principles of law regarding the nature and character of proof of evidence of dying declaration has been settled by several decisions of the Apex Court as also of this Court. The locus classicus of the decision of this Court is the one rendered in Chhitar v. State (1987 WLC UC p. 56), wherein following the principles laid down by the Apex Court, expounded the various concomitants of the proof of a case based purely on the evidence of dying declaration and pointed out thus:- (1) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration (vide : Nannuraja v. State of Madhya Pradesh ( AIR 1976 SC 2199 ) ; (2) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration, (vide : V.S. Mour v. Sate of Maharashtra (AIR 1987 SC 519) ; (3) For this purpose the Court has to apply strictest scrutiny and has to be on guard ensure that the declaration is not the result of tutoring, prompting or imagination and that the deceased had opportunity to observe and identify the assailants and was in fit state to make the declaration, (vide : Ramchandra Reddy v. Public Prosecutor AIR 1976 SC 1944); and (4) Where dying declaration is suspicious it should not be acted upon without corroborative evidence (vide : Rashid Beg v. State of Madhya Pradesh (AIR 1974 SC p. 332) . 17. 17. According to the guiding principles, wrung out from the aforesaid decisions, that is requires is the dying declaration should be voluntary and should not be prompted one; that, maker of the statement was in a fit state of mind to give statement meaning thereby that physical as well as mental fitness of the maker is to be proved by the prosecution. Thus viewed, prime factor which the Court has to see, is to find out whether the dying declaration is true, if it is no question arises. 18. In the case at hand, both the persons who recorded dying declarations (Ex. P. 5 & 3) appearing in the witness box, proved the dying declarations. They deposed that at the time when they recorded the dying declarations in question, the deceased was physically & mentally fit to give statement. There is nothing in their evidence to show that the statement given by the deceased was on account of tutoring or prompting and that the deceased had no opportunity to observe and identify the appellant and was not in a fit state to make the declaration. Thus, the present one is a case where the prosecution has proved on record to show that the make of the dying declaration, viz. the deceased., was in a fit state to observe identify the appellant, rather fit to make the declaration, inasmuch as the declaration in question were not as a result of tutoring, prompting or imagination. In this view of the matter, the declarations in question are held to be voluntary besides not promoted one. The declarations in question cannot be thrown out merely because they are not in the form of question & answer. Learned counsel for the appellant failed to show any rule of law or of prudence or any law laid down either by this Court or the Apex Court to show that the declaration of the deceased should be in the form of question & answer under any rule of law and if it are not in such alleged form, they should not be acted upon and should be rejected in toto. There is no requirement of law nor such a law has been shown to us that the dying declaration must necessarily be made in a particular form allegedly prescribed or the form of answer & question. There is no requirement of law nor such a law has been shown to us that the dying declaration must necessarily be made in a particular form allegedly prescribed or the form of answer & question. Even, as expounded above, there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Corroboration is necessarily to be sought only in cases of dying declaration being suspicious, as would be evident from the decision in Rashid Beg v. State of Madhya Pradesh (supra). Thus it is clear that what evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. Moreover, in a proper case, like the present one, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. 19. In the instant case, the dying declaration in question have been properly proved. The Magistrate who recorded Ex. P. 3 (dying declaration) is Gordhanlal (PW2). He stated that the maker of the statement, viz the deceased was easily stating his version and that the deceased was capable and in a fit state to give his statement. Even the Magistrate proved the signatures put on the dying declaration (Ex. P. 3) at C to D of the deceased, at E to F of the doctor of the ward where the deceased was admitted and who was present on duty at the time of recording the declaration (Ex. P. 3). The Magistrate deposed in his statement that he recorded the statement (Ex. P. 3) in his own writing and he had written whatever the deceased deposed before him. Similarly, Gopi Singh Sub-Inspector of Police (PW 15) stated that Ex. P. 3 dying declaration was got recorded, and that at his instruction, Mahavir Prasad ASI has recorded statement of the deceased (Ex. P. 5). Similarly. Om Prakash Bohra SHO PS Bani Park appeared as PW 12 in the witness box and stated that the dying declaration (Ex. Similarly, Gopi Singh Sub-Inspector of Police (PW 15) stated that Ex. P. 3 dying declaration was got recorded, and that at his instruction, Mahavir Prasad ASI has recorded statement of the deceased (Ex. P. 5). Similarly. Om Prakash Bohra SHO PS Bani Park appeared as PW 12 in the witness box and stated that the dying declaration (Ex. P. 5) recorded by Mahavir Prasad ASI of the police was presented before him and on the basis of which, the F.I.R. was chalked out and thereupon endorsement at G to H was made at his instructions, and that the signatures at A to B & C to D are of Mahavir Prasad who recorded the statement of the deceased. 20. It is significant to note that no cross-examination was made of either Gopi Singh (PW 15) or Om Prakash Bohra (PW 12). Even in the course of cross examination of the Magistrate and police officers who appeared to prove the dying declarations, no questions were put as to the state of health of the deceased and no suggestion was made that the deceased was not in a fit state of health to make any such statement. The Magistrate's evidence so also of the doctor about state health of the deceased who undoubtedly died after about more than 11 days of the incident, after undergoing medical treatment with tireless efforts of the doctors, clearly indicates that it was possible for the deceased to make the statement attributed to the Magistrate and the police officer to him in the dying declarations in which his thumb impression besides signatures had been affixed. The evidence of PWs 2, 12 & 15 clearly corroborates the statements recorded in the dying declarations. We may also point out that none of these witnesses, either Magistrate or the police officer, who recorded the statements of the deceased could be attributed with any kind of ill-feeling against the accused. Moreover, no question about any kind of ill-feeling against the accused was put to these witnesses by the counsel for the accused, nor any question about the alleged inconsistencies pointed out before this Court was put to these witnesses, so as to establish that these declarations were tutured or prompted one. Moreover, no question about any kind of ill-feeling against the accused was put to these witnesses by the counsel for the accused, nor any question about the alleged inconsistencies pointed out before this Court was put to these witnesses, so as to establish that these declarations were tutured or prompted one. We do not find any convincing material on record on the basis of which the testimony of these witnesses or the deceased in the dying declarations can be disbelieved or thrown out of court. The trial Court has elaborately dwelt on this aspect and has carefully considered all the materials on record which we do not think here to reiterate by way of reproduction as it would unnecessarily make the judgment lengthy. Thus, we hold the dying declarations in question as true by arriving at the conclusion that they were voluntary and not prompted ones having been given by the maker of the statement, viz the deceased, in a fit state of mind not only having physical as well as mental fitness duly proved by the prosecution on record. Further more, on the clinching point of assault, these dying declarations in question are clear besides convincing. It clearly proves that it was the appellant who inflicted knife blows in the abdomen. According to these dying declarations, though the appellant opened and continued to make assault with his knife more than 12-13 times and out of which 2-3 blows struck in his abdomen resulting in sustaining injuries on his vital part of the body. These injuries sustained in the abdomen and found by the doctor during medical examination are proved by the doctor in his evidence. 21. In our view, the inconsistencies pointed out by the learned counsel for the appellant in both the dying declarations recorded one after the other about non-mention of some facts in later recorded statement, which too are not to the actual assault, do not diminish the value of the testimony of the deceased in the dying declarations which are consistent to the actual assault and proved that the appellant inflicted knife blows. Therefore, the prosecution could not be made suffer on account of the alleged inconsistencies, once in the facts and circumstances of the case, it has been found proved that the dying declaration was not as a result of tutoring, prompting or imagination. Thus, no question further arises. 22. Therefore, the prosecution could not be made suffer on account of the alleged inconsistencies, once in the facts and circumstances of the case, it has been found proved that the dying declaration was not as a result of tutoring, prompting or imagination. Thus, no question further arises. 22. The findings arrived at by the trial Court as to the recovery of blood stained clothes, knife, and other clothes etc. in our view, do not warrant any interference in view of the material evidence on record on this account, which consisting of FSL report, seizure memo of the knife and its allied memoes proved on record. The incongruities pointed out by the learned counsel for the appellant are the same having already been dealt with and considered by the trial Court, and it has rightly been held that they do not detract from the veracity and truthfulness of the prosecution evidence. Thus, it is wrong to say that the recovery of the knife is shaky in nature and totally doubtful. 23. Now the only question which remains to be considered is as to what offence has been committed by the appellant. 24. Section 299 defines offence of "culpable homicide" which consists "in the doing of an act - (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death, of (c) with the knowledge, that the act is likely to cause death." The trial Court after discussing the evidence of the doctor, came to this conclusion that in the instant case, the doctor failed to depose in his evidence and to state in post-mortem and injury reports that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death of the deceased. Moreover, from the material on record and in medical evidence consisting of the doctors statement, injury and post-mortem reports, it is also not manifestly clear that the injuries found on the person of the deceased were caused with the intention of causing such bodily injury as is likely to cause death or with the knowledge that the act of the assault opened by the appellant was likely to cause death. Having taken into consideration the findings arrived at by the trial court, together with the material on record including the medical evidence, we find that the ingredients of Sec. 299, IPC, are totally missing. 25. In Jayaraj v. State of Tamil Nadu ( AIR 1976 SC 1519 ), in similar circumstances as are in the case at hand, the accused stabbed the deceased with a knife; the deceased died more than nine days after the receipt of the injury-during the period the deceased had been operated upon in the hospital, their Lordships of the Apex Court held that the injury was not caused either with the intention of causing death or with the intention of causing such bodily injury as was sufficient to cause death in the ordinary course of nature; and according to the guiding principles laid down therein, at the most, the accused had, while giving the stab blow, knowledge that his act was likely to cause death. And, in these circumstances, the act of the accused was held to be culpable homicide not amounting to murder which fell under Section 304 and not under Sec. 302, IPC. 26. In the case at hand, we may reiterate that according to the medical evidence consisting of post mortem report and the doctors statement, the injuries found on the person of the deceased in the abadomen were likely to cause death inasmuch as they were grievous in nature having been caused on the vital part of his body, by the appellant. The deceased died more than 10 days after the receipt of the injuries and during the period, he had also been operated upon in the hospital. Merely because, the doctor has opined that the death could have also been caused on account of the infections surrounding the impugned injuries having been occurred because of allegedly doctor's negligence during medical operation upon the deceased in hospital, the whole case cannot be thrown out of court. But, in the facts and circumstances of the present case, it must not be forgotten that the doctor has also concomitantly assigned one of the causes of death by stating not only in his statement but also in postmortem report that besides because of infection (stated above), the mode of death was syncope on account of secondary retroperitoneal haemorrhage brought about as a result of injuries. Injury report (Ex. Injury report (Ex. P. 19) prepared immediately he was admitted in hospital after receipt of the injuries in the transaction of the impugned crime at the hands of the appellant with a knife, clearly indicated that the deceased sustained three stabbed wounds on hypochondriac region & lumber region, measuring from 2.0 x 1/2 cm 3.0 x 1/2 cm. having been caused by sharp object. 27. Having benefited by the enlightments derived from the facts and circumstances pointed above, proved on record, and the guiding principles expounded from the decision in Jayaraj v. State of Tamil Nadu (supra), in the case at hand, also, at the most, the appellant had, while giving the stab blows, knowledge that his act was likely to cause death. In this view of the matter, the offence committed by the appellant would fall under First part of Section 304 not under Section 302, IPC. 28. In the result, this appeal is partly allowed and we alter the conviction of the appellant from one under Section 302 to that under Section 304 Part I, IPC, and reduce his sentence to eight years rigorous imprisonment and to the above extent only, the impugned judgment of the trial Court is modified. The appellant is in jail. He will be entitled to get the benefit of Section 428, Cr.P.C. 29. The record be sent back. *******