JUDGMENT 1. - This appeal is directed against the judgement dated 14.6.88, passed by the Sessions Judge, Udaipur, by which the learned Sessions Judge convicted the appellant for the offences under.Sections 302 and 397 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/-and in default of payment of fine further to undergo six months' rigorous imprisonment for the offence under Section 302 Indian Penal Code and seven years' rigorous imprisonment for the offence under Section 397 IPC. Both the sentences were ordered to run concurrently. 2. Appellant Mustaq Ali was tried by the learned Sessions Judge, Doongarpur, for the offences under Sections 302 and 397 Indian Penal Code for committing the murder of Anil Kumar on 23/24th April, 1987, near Laxmi Paan Bhandar situated at Soniya Chowk, Doongarpur. The case of the prosecution is that Vikram Singh PW 4, the Driver of Police Jeep No. RJJ 1240 had gone to leave PW 14 Lalpuri Goswami- the Deputy Inspector of Police, from the Police Station to New Colony, Doongarpur. When he was returning from the New Colony and reached near Soniya Chowk, he saw Anil Kumar and accused Mustaq Ali, grappling together. Accused Mustaq Ali, after inflicting injuries to Anil Kumar by a knife, ran away. Anil Kumar fell down on the ground and blood was coming from his stomach and he was crying: "save .... save.." Two Motbir persons collected there.He with the help of these Motbir persons, put Anil Kumar in the jeep and brought him to the Government Hospital, Doongarpur. Anil Kumar informed them that accused Mustaq Ali had inflicted injury by his knife on his stomach and had taken away his wrist watch and Rs. 400/-. After leaving injured Anil Kumar in the hospital, Vikram Singh lodge the F.I.R at Police Station, Doongarpur. Anil Kumar was medically examined by PW 16 Dr. Balmukand, who, after examining his injuries and looking to his serious condition, recorded the dying declaration EX.P.W of deceased Anil Kumar. The Magistrate was, also, called and PW 9 Shri Shesha Ram Gander- the then Munsif and Judicial Magistrate, Doongarpur, thereafter came to the hospital and recorded the second dying declaration of Anil Kumar. Balmukand, who, after examining his injuries and looking to his serious condition, recorded the dying declaration EX.P.W of deceased Anil Kumar. The Magistrate was, also, called and PW 9 Shri Shesha Ram Gander- the then Munsif and Judicial Magistrate, Doongarpur, thereafter came to the hospital and recorded the second dying declaration of Anil Kumar. Before the dying declaration EX.P. 9 and EX.P. 12 were recorded by the doctor and the Magistrate, respectively, Vikram Singh informed PW 5 Bhanwar Lal - the father of Anil Kumar- who, alongwith his brother PW 7 Natwar Lal, came to the hospital. At that time Anil Kumar was in senses but he was feeling severe pain. On enquiry being made, Anil Kumar informed his father and uncle that accused Mustaq Ali inflicted injury to him with a knife on his stomach and had taken away his wrist watch and Rs. 400/-Anil Kumar thereafter succumbed to the injuries. The prosecution, in support of its case,examined eighteen witnesses. The accused, in his defence, did not examine any witness. The learned trial Court, after trial, convicted and sentenced the accused-appellant as stated above. 3. PW 1 Laxmi Lal is the owner of "Laxmi Paan Bhandar", in front of whose shop the incident took place. He was an eye witness to the occurrence. PW 2 Ramesh Pandya and PW 3 Suresh Kumar Pandya are the two persons who came at the scene of the occurrence immediately after the occurrence and saw the accused. But all these three witnesses have not supported the prosecution case and have been declared hostile. Therefore, there is no eye witness to the occurrence to prove the prosecution case and the prosecution case mainly rests upon the dying declarations made by Anil Kumar. The first set of dying declaration is the oral dying declaration made by Anil Kumar before PW4 Vikram Singh Driver, PW 5 Bhanwar Lal the father and PW 7 Natwar Lal -the uncle of the deceased. The second dying declaration was recorded by PW 16 Dr. Balmukand and the third dying declaration was recorded by PW 9 Shri Shesha Ram Gander - the then Munsif and Judicial Magistrate, Doongarpur. The second dying declaration was recorded by PW 16 Dr. Balmukand and the third dying declaration was recorded by PW 9 Shri Shesha Ram Gander - the then Munsif and Judicial Magistrate, Doongarpur. This evidence of dying declarations is further sought to be corroborated from the recovery of the blood-stained knife, containing `B' Group of human blood which was the blood-group of the deceased, on the information and at the instance of the accused-appellant; as well as from the recoveries of the wrist watch and Rs. 400/- on the information and at the instance of the accused-appellant. 4. The conviction of the accused can be based on the dying declaration if it is true, voluntary and is not the result of tutoring, prompting or the product of imagination. There are two written dying declarations, i.e., EX. P. 19 recorded by PW 16 Dr. Balmukand and EX. P. 12 recorded by Shri Shesha Ram Gander, the then Munsif and Judicial Magistrate, Doongarpur. The third is the oral dying declaration made by deceased Anil Kumar before PW 4 Vikram Singh Driver, PW 5 Bhanwar Lal - the father of the deceased and PW 7 Natwar Lal - the uncle of the deceased. The evidence of the dying declaration is accepted on the ground that a person will not like to meet his maker with a lie in his month. PW 4 Vikram Singh has stated that accused Mustaq Ali ran after seeing the head-lights of the jeep. He took-up the injured from the ground and put him in the jeep. Anil Kumar while lying on the ground, was crying that accused Mustaq Ali inflicted injury to him by a knife. He, also, informed that after inflicting the injury, Mustaq Ali had taken away his wrist watch and Rs. 400/-. PW 5 Bhanwar Lal is the father of the deceased. He has stated that Vikram Singh Driver came to him and informed that Anil Kumar has received injury by knife and has been admitted in the hospital. On receiving this information, all of his family members went to the hospital. When they reached in the hospital, Anil Kumar was in serious condition and was demanding water and was saying that Mustaq Ali had inflicted injury to him by a knife and had taken away his wrist watch and Rs. On receiving this information, all of his family members went to the hospital. When they reached in the hospital, Anil Kumar was in serious condition and was demanding water and was saying that Mustaq Ali had inflicted injury to him by a knife and had taken away his wrist watch and Rs. 400/- PW 7 Natwar Lal - the uncle of the deceased and brother of PW 5 Bhanwar Lal who had, also, gone to the hospital with Bhanwar Lal, has corroborated the statement given by PW 5 Bhanwar Lal and stated that Anil Kumar informed them that Mustaq Ali, on Soniya Chowk, inflicted injury to him with a knife and had taken away his wrist watch and Rs.400/- from his pocket. A lengthy cross-examination have been conducted on these witnesses but their evidence remained unshaken so far as this aspect of the case is concerned. From the evidence of these witnesses, the making of the oral dying declaration by Anil Kumar before these witnesses, has sufficiently been proved and it has been proved that the deceased was in a fit condition to make the statement and the dying declaration made by the deceased is true, voluntary and without any concoction, prompting or imagination. 5. The other dying declaration is EX.P. 19 recorded by PW 16 Dr. Balmukand. PW 16 Dr. Balmukand has stated that he recorded the dying declaration EX.P.19 of Anil Kumar at 1.20 a.m. on 24.4.87 and Anil Kumar stated in his dying declaration EX P.19 that Mustaq Ali inflicted injury to him with a knife; why he inflicted injury to him, he did not know. He has, also, stated that he took liquor with the accused near the Roadways Depot and the accused inflicted injury to him with the knife in Soniya Chowk. Dr. Balmukand has stated that at the time when this dying declaration was recorded by him, Anil Kumar was in senses and nobody had influenced him and he recorded what was stated by Anil Kumar. 6. The second dying declaration EX.P.12 was recorded by PW 9 Shri Shesha Ram Gander - the than Munsif and Judicial Magistrate, Doongarpur on 24.4.87 at 2.00 a.m. when he was requested by the police to do so. He recorded the dying declaration EX.P. 12 in the General Hospital, Doongarpur, in the Surgical Male Ward in the presence of Dr. B.M. Upadhaya. Dr. He recorded the dying declaration EX.P. 12 in the General Hospital, Doongarpur, in the Surgical Male Ward in the presence of Dr. B.M. Upadhaya. Dr. B.M. Upadhaya after medical check-up of Anil Kumar, gave his note that Anil Kumar was in a fit condition to give statement and after obtaining his opinion, the Magistrate started recording the statement at 2.10 a.m. and completed it at 2.50 a.m. It was stated by Anil Kumar that at about 11.45 p.m., accused Mustaq Ali inflicted injury to him by a knife near his navel (umbilicus) region and after inflicting injury to him by knife, Mustaq Ali took away his wrist watch and Rs. 400/-. 7. The version given by Anil Kumar in all these dying declarations is the same. There is neither any improvement nor any contradiction or change in the dying declaration. All the three dying declarations are consistent. They appear us to be true and voluntary. The dying declarations made by Anil Kumar, thus, inspire confidence. 8. This evidence of dying declarations is further supported by the recovery of the blood-stained knife on the information and at the instance of the accused-appellant as well as the recoveries of the wrist watch and the currency notes of Rs. 400/-. The knife recovered on the information and at the instance of the accused- appellant contained `B' group of human blood which was the blood group of the deceased. From the evidence, produced by the prosecution, it has, therefore, been proved that it was the accused-appellant who inflicted knife injury on the stomach of deceased Anil Kumar, as a result of which he died. 9. The next question which requires consideration is : what offence has been committed by the accused-appellant; whether the appellant can be convicted for the offence under Section 302 Indian Penal Code for committing the murder of Anil Kumar or he can be held guilty for culpable homicide not amount to murder ? The totality of the established facts and circumstance do show that the accused appellant and the deceased were together, they took the liquor and at the spur of moment, on some trivial issue, the incident took place; the accused took out the knife and inflicted injury by the knife on the stomach of Anil Kumar. The accused did not repeat the blow. The accused did not repeat the blow. The occurrence took place most unexpectedly in a sudden quarrel without any pre-meditation, during thecourse of which the appellant caused a solitary injury by a knife on the stomach of Anil Kumar. The appellant, therefore, cannot be imputed with the intention to cause the death of Anil Kumar or with the intention to cause that particular injury which was likely to cause his death, but he can be imputed with the knowledge that he is likely to cause an injury which was likely to cause the death of Anil Kumar. In the absence of any positive proof that the appellant caused the death of the deceased with an intention to cause his death or intentionally inflicted that particular injury which resulted in the death of the victim, neither clause Firstly nor Thirdly of Section 300 Indian Penal Code is attracted. The appellant can, therefore, be held guilty for the offence under Section 304 Part II, Indian Penal Code, i.e., culpable homicide not amount to murder, and his conviction and sentence under Sec 302 Indian Penal Code, passed by the learned trial Court) therefore, deserve to be quashed and set-aside. 10. The learned trial Court has, also, convicted and sentenced the appellant for the offence under Section 397 Indian Penal Code for commitying the robbery of the wrist watch and the amount of Rs. 400/- belonging to the deceased. PW 4 Vikram Singh Driver, PW 5 Bhanwar Lal the father of the deceased - and PW 7 Natwar Lal - the uncle of the deceased - have clearly stated that the deceased informed them that accused Mustaq Ali had inflicted injury to him by the knife and had, also, taken away his wrist watch and Rs.400/-. The wrist watch and Rs. 400/- were recovered on the information and at the instance of the accused-appellant. EX.P.26 is the information given by the accused-appellant under Section 27 of the Evidence Act and in pursuance to that information, in the presence of PW 15 Laxman Ram, the wrist watch was recovered from the accused-appellant. This wrist watch was in-identified by PW 5 Bhanwar Lal and PW 7 Natwar Lal to be that of the deceased. Regarding Rs. 400/- the information given by the accused-appellant is EX.P. 27 and in pursuance to that information the recovery of Rs. This wrist watch was in-identified by PW 5 Bhanwar Lal and PW 7 Natwar Lal to be that of the deceased. Regarding Rs. 400/- the information given by the accused-appellant is EX.P. 27 and in pursuance to that information the recovery of Rs. 400/- was made from the accused in the presence of PW 11 Ashok Kumar and PW 18 Gordhan Lal Meena. From the evidence produced by the prosecution, the recoveries of the wrist watch and Rs. 400/- on the information and at the instance of the accused -appellant stand proved. The learned trial Court has, therefore, right convicted and sentenced the accused-appellant the offence under Section 397 Indian Penal Code as the ingredients of this offence fully stand satisfied. We are, therefore, of the opinion that the learned trial Court has not committed any illegality, in convicting and sentencing the accused-appellant for the offence under Section 397 Indian Penal Code and the judgement, passed by the learned trial Court, convicting and sentencing the accused-appellant for this offence, does not require any interference. 11. In the result, the appeal, filed by the accused-appellant is partly allowed. His conviction and sentence for the offence under Section 302 Indian Penal Code, passed by the learned trial Court, are set aside. However, he is convicted for the offence under Section 304 Part II, Indian Penal Code and is sentenced to undergo five year's rigorous imprisonment and a fine of Rs. 500/-(Rs. five hundred only ) and in default of payment of fine to further undergo one month's rigorous imprisonment. His conviction and sentence for the offence under Section 397 Indian Penal Code are maintained. Both the substantive sentences shall run concurrently. The period of imprisonment undergone by the accused-appellant during investigation, enquiry or trial shall be set-off against the term of sentence imposed against the appellant. The appellant is in jail since 17.6.88 and has served out the term of sentence. He be released forthwith if not required in any other case.Appeal partly allowed. *******