R. D. SHUKLA, J. ( 1 ) THE appeal is directed against the judgment and order dated 25th May, 1988 of the 3rd Addi. Sessions Judge. Alirajpur District Jhabua passed in S. T. No. 48/88 whereby the accused-appellant has been convicted u/s. 302 of I. P. C. for having committed murder of his son Udaniya on 24. 11. 87 in village Hardaspur and sentenced to imprisonment for life. ( 2 ) THE brief history of the case is that accused, his wife Bhurli (P. W. 1) and deceased Udaniya were living jointly. On the date of incident i. e. on 24. 11. 87 in the evening P. W. 1 Bhurli had kept, milk in a earthen pot, the deceased came after an hour and saw that the pot was empty. As such, he inquired as to who has consumed whole of the milk. Bhurli farther expressed doubt that the cat may have drunk the milk. But deceased Vdaniya asked from his father about the milk. This infuriated the accused. There was a quarrel between them. Accused felt humiliated and caused injuries by means of arrow to Vdaniya. Arrow hit him at the abdomen. He took out the arrow and threw it because of the scream and an alarm the neighbours came there. The injured informed them about the incident. Thereafter he was taken to the Police Station Ambua, nearly 6 Kms away from the place of incident. ( 3 ) THE matter was reported by injured Vdaniya at about 10. 45 P. M. in the night the same was recorded by P. W. 6 Khilawan singh Head Constable. He was sent for medico-legal examination with requisition memo Ex. P/10. He was examined by Dr. G. S. Gehold P. W. 10 on the same night. He found a penetrating incised wound on the epigastrium size 1 1/2 x 1/2 depth up the abdomen. The omentum was coming out. Looking to the seriousness of the injury the injured was referred to Civil Hospital Alirajpur. ( 4 ) P. W. 11 D. Faiyazhuddin operated the injured on the abdominal region. He found nearly two litres of blood in the peritonial cavity. There was perfuration in the stomach and in the jejunum. The injured Vdaniya died while he was in the hospital. The autopsy on the body was also conducted at the request of Police Officer by Dr. Faiyaz Hussain. He found nearly two litres of blood in the peritonial cavity. There was perfuration in the stomach and in the jejunum. The injured Vdaniya died while he was in the hospital. The autopsy on the body was also conducted at the request of Police Officer by Dr. Faiyaz Hussain. During Post mortem examination the stitched wound nearly 6 in length and incised punctured wound of operation were found. Dr. Faiyaz Hussain further opined that the cause of death of Vdaniya was shock and syncope due to severe peritonitis and enemia due to injury. ( 5 ) AS such offence u/s. 302 of I. P. C. was converted. It was investigated by P. W. 7 Yashwant Shukla Head Constable. During stay in the hospital Bhurli was also interrogated u/s. 161 Cr. P. C. During investigation the statement of Bhurli (P. W. 1) and other witnesses i. e. Bherwa were recorded u/s. 164 Cr. P. C. ( 6 ) THE accused abjured the guilt and pleaded that he has been falsely implicated. Learned Trial Judge has convicted and sentenced the accused as above. Hence this appeal. ( 7 ) THE contention of the learned counsel for the appellant is that almost all the witnesses have turned hostile and, there fore, the conviction could not be based merely on the basis of dying declaration. ( 8 ) THE further contention of the learned counsel for the appellant is that certain admissions on the part of hostile witnesses and the accused cannot be picked up for completing the chain of evidence against the accused. ( 9 ) IT has also been submitted that the admission of accused during his statement under Section 313 C. L. P. C. cannot be taken into consideration for basing the conviction. ( 10 ) AS against it learned counsel for the State has submitted that the deceased has himself made a report to the Police. The same stands proved and that has rightly been made basis for conviction and it also stands corroborated from the statement of prosecution witnesses who though have not corroborated the story on material part but have made consistent statements about certain facts. ( 11 ) P. W. 1 Bhurli, eye witness of the incident, P. W. 2 Idala, P. W. 3 Bherla, PW. ( 11 ) P. W. 1 Bhurli, eye witness of the incident, P. W. 2 Idala, P. W. 3 Bherla, PW. 4 Hemta and P. W. 9 Kallu who came immediately after the incident and to whom the matter was reported by the injured have turned hostile and there are reasons for the same. P. W. 1 Bhurli is the wife of the accused. She has lost a young adult son and therefore she did not want to loose her husband by getting him convicted. P. W. 3 Bherla has admitted that he does not want that the accused should be convicted. P. W. 4 Hemta and P. W. 9 Kallu are neighbours, P. W. 9 Kallu has also admitted that he does not want to come in between the father (accused) and son (deceased) ( 12 ) IT has been admitted by P. W. I Bhurli that deceased Udaniya was taken to Police-station Ambua. He made a report to the police and an arrow produced by this witness was seized by the police, P. W. 2, Idala, P. W. 3 Bherla and P. W. 9 have also accepted that on reaching the house of accused they found Udaniya with injuries on the abdomen. ( 13 ) P. W. 6 Khilawansingh H. C. has stated that Udaniya was brought to the Police-station in the night of 24. 11. 87 He made a report of the incident. As such. Ex. P/9 was recorded by him and thereafter he sent him for medico-legal examination with a letter of requisition Ex. P/10. Nothing substantial has been brought against this witness which can render his evidence to be unreliable. ( 14 ) IN our opinion, therefore it has rightly been relied by the Trial Court that deceased Udaniya did make a report Ex. P/9. P. W. 7 Yashwant Shukla has also stated that he examined Udaniya on 24. 11. 87 with respect to injuries on his body and the incident and the same was recorded vide Ex. Pill. There is absolutely no cross-examination on this point. It has therefore, been rightly believed that Udaniya has given statement Ex. P/il to Head Constable Shukla. P/9. P. W. 7 Yashwant Shukla has also stated that he examined Udaniya on 24. 11. 87 with respect to injuries on his body and the incident and the same was recorded vide Ex. Pill. There is absolutely no cross-examination on this point. It has therefore, been rightly believed that Udaniya has given statement Ex. P/il to Head Constable Shukla. ( 15 ) THE F. I. R. given by the deceased will come under the second part of Clause (1) of Section 32 of the Evidence Act in the same manner in which the dying declaration can be brought under the provisions of law. Where after making the statement before the police the victim succums to his injuries the statement can be treated as a dying declaration and is admissible under Sec. 32 (1) of the Evidence Act, when the statement relates to his cause of death. (AIR. 1976 S. C. 2 199 ). ( 16 ) A dying declaration may not unlike a confession or a testimony of an approver come from a tainted source. Generally speaking, maker of a dying declaration cannot be terminus with the same brush as the maker of a confession or an approver. ( 17 ) IN our opinion, therefore, the dying declaration if proved can form on the basis of conviction and the contention of the learned counsel for the appellant against this cannot be accepted. In this case the dying declaration of Udaniya in the shape of FJ. R. (Ex. P/9) and in the shape of statement u/s. (61 Cr. P. C. has been proved by two witnesses referred to above i. e. P. W. 6 Khilawan singh and P. W. 7 Yashwant Shukla. ( 18 ) A dying declaration is relevant and material evidence in the prosecution of the assailants and a truthful and reliable dying declaration may form the sole basis of conviction: even though it is not corroborated. But the court must be satisfied that the declaration is truthful (A. I. R. 1965 S. C. 939) ( 19 ) FROM the statement of law above, a truth full dying declaration can form and the basis of conviction. However, in this case there is a corroboration and the fact firstly, the two doctors i. e. Dr. Gehlod (P. W. 10) and Dr. Faiyashussain (P. W. 11) have corroborated the story to the extent of injury in the abdomen of Udaniya. However, in this case there is a corroboration and the fact firstly, the two doctors i. e. Dr. Gehlod (P. W. 10) and Dr. Faiyashussain (P. W. 11) have corroborated the story to the extent of injury in the abdomen of Udaniya. ( 20 ) IT further finds corroboration from the statement of Bhurli where she states that Udaniya was brought to Police station Ambua she also accompanied and Udaniya made a report in the Police-station. The fact of Udaniya having been found injured on the night of incident and that to in his own house, further stands corroborated from the statement of Idala, Bherla and Kallu Though these witnesses have turned hostile but if certain facts have been stated by them and have not been challenged by the defence the same can accepted for the purpose of corroboration. Certain admission in the statement of the accused may not be sufficient for basing the conviction but if certain facts have been proved and the same have been accepted by the accused on being questioned about it. These facts can be accepted as having not been challenged. ( 21 ) IT is not in dispute that the accused was residing with his wife Bhurli and son Udaniya Udaniya was found injured on the night of the incident and in this back-ground questions wereasked from him and he admitted in reply to questions No. 2 3, 8 to 17 that the milk kept by Bhurli was not found in the earthen pot and the same was inquired by Udaniya. Udaniya was found injured by arrow. The people came there and Udaniya was thereafter taken to Policc-station and examined by doctor. He was further questioned by the Police-officer. All these facts have been admitted by him. Thus, the facts referred above are not only found proved but go unchallenged as is apparent from the statement of the accused. ( 22 ) IT fully not be out of place to mention it here that the dying declaration must be taken as a whole. In the Dying declaration Ex. P19 and Ex. Pill it has come that the deceased had enquired from his father (accused) as to who had consumed the milk. This infuriated him taking it to be that he is being alleged of larceny. In the Dying declaration Ex. P19 and Ex. Pill it has come that the deceased had enquired from his father (accused) as to who had consumed the milk. This infuriated him taking it to be that he is being alleged of larceny. ( 23 ) WHILE assessing and evaluating the fact of provocation the background of the society; living conditions, educational standard and the mental development of the person involved therein has to be taken into consideration. In a highly sophisticated and civilized society such petty allegations may not cause provocations but in a primitive society of aboriginals (to which the accused and deceased belong), this may be sufficient to raise the tamper. In a society of aboriginals such allegations may be taken very seriously and that may amount to grave provocation and in the background of the case that the son has alleged consumption of milk by the father stealthily may be taken to be a grave provocation. It was sudden, there is no doubt about it. ( 24 ) IN our opinion, therefore, despite the fact that the causing of injuries by means of arrow to the deceased which was sufficient in the ordinary course of nature to cause the death; the accused cannot be held guilty for committing murder. But he shall certainly be liable for causing death on grave and sudden provocation, which would come under the definition culpable of homicide not amounting to murder and punishable U/s. 304 (2) of I. P. C. On the knowledge of likelihood death can also be attributed to him. ( 25 ) AS result the appeal partly succeeds. Accused is acquitted of offence punishable U/s. 302 of i. P. C. However, he is convicted under Section 304 Part. II of I. P. C. for causing death on a grave and sudden provocations. It appears the accused was taken in custody on 25. ll. H7 and was in jail all along. Thus, he has suffered incarceration for more than six years (nearly 6 years 4 months) which would be a sufficient punishment for the offence committed by him. He is, therefore, sentenced for the period already undergone. Accused be set at liberty forthwith if not required in connection with any other case. Appeal allowed partly. .