P. S. NARAYANA, J. ( 1 ) THE appellant-accused preferred this appeal as against the judgment dated 05-08-1997, made in Sessions Case No. 247 of 1995, on the file of Additional Sessions Judge, rangareddy District at Saroornagar. Accused was tried for an offence punishable under section 302 of the Indian Penal Code (I. P. C.) but was found guilty under Section 304-II ipc, and sentenced to undergo rigorous imprisonment for eight years. ( 2 ) THE substance of the charge against the accused is that on 19-11-1991 at 3. 30 p. m. at the lands of Kapu people, he caused the death of one Khasim Saheb by stabbing him with a knife. P. W. 4 is the grand son and p. W. 5 is the son-in-law of the deceased. Accused was a native of Rampur village, but a resident of Hyderabad and used to visit rampur occasionally and the deceased was the resident of Rampur. On the date of incident at about 2. 30 p. m. while P. W. 2 was returning to his village, he met the accused in the bus, who informed him that the deceased had to give him some amount inasmuch as his grand father sold land to the deceased and the deceased had to pay the sale consideration. Subsequent thereto accused went to the house of P. W. 4 and enquired about the deceased as he had to talk with him, then P. W. 4 took the accused to chakali kathava , where the deceased was grazing the cattle, and while they were talking, p. W. 4 left the place and went to P. W. 5. Then at about 4. 30 or 5. 00 p. m. , while P. W. 1 was in the land of Mallanna, one person, the son of ananthaiah informed him that deceased received bleeding injuries and fell down, immediately P. W, 1 rushed to the scene of offence and saw the deceased with bleeding injuries on his stomach and on the right side of the throat. On receipt of information subsequent thereto, P. Ws. 2 to 5 also rushed to the spot and on their enquiry, it is stated that the deceased had informed them that the accused stabbed him and ran away. The sarpanch of the village also came there and shifted the deceased to Government Hospital, sangareddy. On 19-11-1991 at 8. On receipt of information subsequent thereto, P. Ws. 2 to 5 also rushed to the spot and on their enquiry, it is stated that the deceased had informed them that the accused stabbed him and ran away. The sarpanch of the village also came there and shifted the deceased to Government Hospital, sangareddy. On 19-11-1991 at 8. 00 p. m. on receiving a written complaint-Ex. P-1 from p. W. 1, P. W. 9, the Sub-Inspector of Police, kusaiguda, registered a case in Crime No. 97 of 1991 under Section 307 IPC, and issued first Information Report (FIR) marked as ex. P-4 and on 20-11-1991 he went to the scene of offence, and during the course of investigation, he recorded statements of p. Ws. 3 to 5. Then on 26-11-1991 he recorded the statement of deceased at the hospital, which is marked as Ex. P-6. Subsequently, on 03-12-1991 on receiving death intimation, p. W. 9 altered the Section of law from section 307 to 302 IPC and issued altered FIR marked as Ex. P-5. Thereafter, P. W. 8, Circle-Inspector of Police had taken up further investigation, held inquest over the dead body of the deceased in the presence of p. W. 2 and Ex. P-2 is the inquest report. On a requisition, on 03-12-1991. P. W. 7, the Civil assistant Surgeon, Community Hospital, jogipet conducted autopsy over the dead body of the deceased, and opined that the cause of death was due to septicemia and shock and Ex. P-3 is the postmortem report. On 16-12-1991 accused surrendered before the Court, and on receiving the relevant documents, and on completion of investigation P. W. 8 filed the charge sheet. ( 3 ) THE defence of the accused is one of total denial, in support of the version of the prosecution, P. Ws. 1 to 10 were examined and Exs. P-1 to P-7 were marked. As already referred to supra, the accused was convicted under Section 304-II IPC. ( 4 ) SRI Praveen Kumar, the learned counsel, representing appellant-accused would submit that there are no eyewitnesses to the incident and this is a case based on circumstantial evidence. The learned Counsel also commented that the witnesses, son of ananthaiah and Pandu Ranga Reddy, who are the material witnesses to connect the links in circumstantial evidence, had not been examined. The learned Counsel also commented that the witnesses, son of ananthaiah and Pandu Ranga Reddy, who are the material witnesses to connect the links in circumstantial evidence, had not been examined. The evidence of P. W. 2 and also the motive relating to the commission of the crime also cannot be believed. The learned counsel also submitted that oral dying declarations alleged to have been made to p. Ws. 1, 3 to 5 also cannot be believed and p. W. 9 the Investigating Officer had recorded ex. P-6 on 26-11-1991 and the learned Counsel also would submit that in between, the prosecution had sufficient opportunity to get the dying declaration recorded by the magistrate, but though there is some evidence on record that an attempt was made in this regard, the same was not done, hence, in the light of the same, the dying declarations cannot be relied upon. The learned Counsel also pointed out relating to the delay in giving the complaint and also the delay in fir reaching the Magistrate. The learned counsel further pointed out that P. W. 3 deposed that he was not examined by Police at all, P. W. 4 deposed that he was examined after 2 or 3 days and P. W. 1 does not speak about the presence of P. W. 3, and P. W. 4 deposed that P. Ws. 4 and 5 went together, whereas, P. W. 5 deposed that, P. W. 4 came later. These are certain of the variations, which had been pointed out by the learned counsel. The learned Counsel also submitted that there was no recovery and even otherwise, in the light of the injuries received by the deceased, it is highly doubtful whether he was capable of making such oral dying declarations to the witnesses. The learned counsel also placed reliance on Marudanal augusti, Appellant v. State of Kerala, Respondent and State of Assam, Appellant v. Bhelu Sheikh and others. ( 5 ) THE learned Additional Public prosecutor, Sri Niranjan Reddy, had pointed out that there is absolutely no infirmity in the version of the prosecution. The learned counsel also placed reliance on Marudanal augusti, Appellant v. State of Kerala, Respondent and State of Assam, Appellant v. Bhelu Sheikh and others. ( 5 ) THE learned Additional Public prosecutor, Sri Niranjan Reddy, had pointed out that there is absolutely no infirmity in the version of the prosecution. The learned additional Public Prosecutor would submit that this is not a case where the crime was registered under Section 302 IPC initially, but the crime was registered under Sec. 307 ipc, which was subsequently altered by virtue of subsequent death of the deceased, and hence, the evidence may have to be appreciated in this backdrop. The learned additional Public Prosecutor also pointed out that in the FIR, the name of P. VV. 3 had been mentioned and in the evidence also p. W. 1 deposed as that of P. W. 3 and in this view of the matter, the evidence is consistent the learned Additional Public Prosecutor would submit that though P. W. 3 stated that he was not examined by Police, P. W. 9 specifically deposed that he had recorded his statement. The learned Additional Public prosecutor in all fairness submitted that though the practice of the Police Officers recording dying declaration had been deprecated, in the facts and circumstances, since there was no alternative, Ex. P-6 was recorded. The learned Additional Public prosecutor would submit that an attempt was made to call the Magistrate, since the deceased at the relevant point of time was unable to make statement, the same was not recorded, and hence, the mere fact that the dying declaration was not recorded by the magistrate may not be fatal to the prosecution s case, in the facts of this case. The learned Additional Public Prosecutor also submitted that Ex. P-6 is only an additional circumstance and the oral dying declarations are clear and consistent and no serious infirmities had been pointed out even by defence Counsel, and hence, such evidence can be definitely relied upon for sustaining the conviction. He placed reliance on Khushal rao, Appellant v. State of Bombay, Respondent and Ananta Mahanto, Appellant v. State of orissa, Respondent. The learned Additional public Prosecutor would conclude that there is no delay in giving the complaint, and the delay in the FIR reaching the Magistrate may not be material. He placed reliance on Khushal rao, Appellant v. State of Bombay, Respondent and Ananta Mahanto, Appellant v. State of orissa, Respondent. The learned Additional public Prosecutor would conclude that there is no delay in giving the complaint, and the delay in the FIR reaching the Magistrate may not be material. Reliance was placed on munshi Prasad and others, Appellants v. State of bihar, Respondent and also Laxmi v. Om prakash. ( 6 ) HEARD the learned counsel at length. ( 7 ) THIS is a case based on circumstantial evidence. P. W. 1, aged about 28 years, deposed that one Khasim was the resident of his village and he died about 5 or 6 years ago and he knows accused, a native of Rampur village and a resident of Hyderabad. On the relevant date, at about 4. 30 or 5. 00 p. m. , he was in the land of Mallanna, half kilometer from Rampur village towards West and one person who is the son of Ananthaiah of rampur village, came to him and informed him that Khasim received bleeding injuries and fell down at the land of Khasim, four or five feet away from the land where he was. He went there and found Khasim with injuries bleeding on his stomach and on the right side of the throat. Then, Khasim informed that accused came and asked him to pay some amount due to him and he replied that he already paid the amount to him and his father, then the accused stabbed him and ran away. With the help of upper cloth of the deceased used as rumal , he tied around his stomach to prevent bleeding, later the Sarpanch of the village, namely pandu Ranga Reddy came there and they had taken the deceased to the Government hospital, Sangareddy, 15 days later, Khasim died in the Hospital. On the next day of the incident, he gave complaint to the police about the incident and actually he gave oral statement to the Station House Officer, which was reduced into writing. In cross-examination, p. W. 1 deposed that the is related to the deceased and he does not know the contents of Ex. P-1, since he cannot read and write Telugu, but however, after recording the same, they were read over to him and he found them to be true and correct. In cross-examination, p. W. 1 deposed that the is related to the deceased and he does not know the contents of Ex. P-1, since he cannot read and write Telugu, but however, after recording the same, they were read over to him and he found them to be true and correct. He also deposed that he does not know how many years back, the accused left his village and he used to see him during his visits to the village and he used to come once in a year at the time of moharam festival. He had denied the suggestion that there were ill feelings between the deceased and the family of the accused. He also deposed that he knows about the purchase of land by the deceased from the family of the accused. P. W. 1 also deposed that when he saw the deceased in the land with injuries, the deceased was not in a position to speak, but at that time, he was in conscious stage, sometime later i. e. , 2 or 3 minutes later, the deceased spoke and when he went there, he found many kids and he cannot give their number and names. He had denied the suggestion that the deceased did not speak anything against the accused at that time and he was deposing falsely because of his relationship. ( 8 ) P. W. 2 deposed about what had happened at 2. 30 p. m. on the date of incident. P. W. 2 deposed that by the same bus, he and accused came to the village and accused informed him that he had to get some money from the deceased-Khasim. At about 5. 00 p. m. on the same day, he heard the words maare maare from outside and then he came out and found that Khasim was brought into the village on a cart from chakali river side and he saw Khasim with injuries on his stomach, which were in fact tiled by means of a cloth and he also deposed that he did not ask Khasim as to how he received injuries. Later, he was shifted to government Hospital. Certain suggestions were put to this witness in cross-examination, which were denied. ( 9 ) P. W. 3 is one Mallareddy. This witness deposed about what had happened on the fateful day. Later, he was shifted to government Hospital. Certain suggestions were put to this witness in cross-examination, which were denied. ( 9 ) P. W. 3 is one Mallareddy. This witness deposed about what had happened on the fateful day. He deposed that there are about 4 fields in between the place of incident and the place where he was grazing his cattle and on information, he and P. W. 1 went to the field of Khasim and they found Khasim with injuries on the stomach and another injury on his throat. Then, with the help of P. W. 1, he tied the injuries by means of a cloth which the deceased was using as rumal and enquired Khasim as to what had happened and he replied that son of Basheeruddin came and asked him to pay the sale consideration in respect of sale of land and he replied that he was not in a position to pay and then he was stabbed. P. W. 3 further deposed that the son of Basheeruddin is called Gousuddin and the accused is the same person who according to the deceased, had stabbed him. No doubt, this witness deposed that he was not examined by police. In cross-examination, nothing serious had been elicited to discredit the veracity of P. W. 3. ( 10 ) THE evidence of P. Ws. 4 and 5 also is clear and categorical. They deposed about all the details and narrated the events, which had happened in sequence and also what was exactly stated by the deceased on the fateful day. A careful scrutiny of the oral dying declarations made to P. Ws. 1, 3 to 5 appear to be consistent and no serious infirmities as such had been pointed out. ( 11 ) P. W. 6 deposed that the Sub-Inspector of Police and the Inspector of Police conducted inquest over the dead body in the hospital in his presence and others, and they found injuries on stomach and neck and it was opined that Gousuddin caused injuries and killed him, and the accused present in the Court is the very same person and police examined P. W. 1 and some others. He further deposed that at that time, P. W. 4 also was present and accordingly panchanama was written by Sub-Inspector of Police, Ex. P-2 is the Inquest Report. He further deposed that at that time, P. W. 4 also was present and accordingly panchanama was written by Sub-Inspector of Police, Ex. P-2 is the Inquest Report. ( 12 ) P. W. 7 is the Civil Assistant Surgeon, who had deposed about the injuries, which would clearly support the version of the prosecution. P. W. 7 also deposed that he is of the opinion that the death occurred within six hours prior to the post-mortem examination and due to septicemia and shock. By the time of postmortem examination, the injuries were operated and hence he cannot say by what weapons they could have been caused. Ex. P-3 is the postmortem report issued by him. ( 13 ) P. W. 8, Assistant Commissioner of police, Chikkadapally, deposed that he had taken up investigation in this case from Sub-Inspector of police and he proceed to sangareddy Hospital and recorded the statement of Zaheerabee, wife of Khasim saheb, and he conducted inquest in the presence of Balkemian and P. W. 2 over the dead body and he examined Zaheerabee and it was opined that he died due to stabbing injuries in his stomach. On 16-12-1991 accused surrendered before the Court and after receiving the postmortem report, he filed charge sheet. No doubt, it was suggested that this witness had not properly investigated, which was denied. ( 14 ) P. W. 9, the Sub-Inspector of Police, deposed that on 19-11-1991 he received a written complaint from P. W. 1, as in Ex. P-1 and registered crime No. 97 of 1991, under section 307 IPC. Ex. P.-4 is the FIR. On the same day, he examined P. W. 1 and recorded his statement in the Police Station itself. P. W. 9 further deposed that on 20-11-1991, he went to Rampur village where he recorded statements of P. Ws. 3 and 4. He went to the scene of offence on 20-11-1991 and the scene of offence is the agricultural field of deceased, half kilometer from Rampur village. The land of Malla Reddy-P. W. 3 is to the North of the land of the deceased. The place, where dead body was found is called chakali kathava . This witness further deposed that on 23-11-1991, he visited Rampur village and recorded statement of P. W. 4. On 26-11-1991, he went to Government Hospital, sangareddy, and also recorded the statement of P. W. 5. The place, where dead body was found is called chakali kathava . This witness further deposed that on 23-11-1991, he visited Rampur village and recorded statement of P. W. 4. On 26-11-1991, he went to Government Hospital, sangareddy, and also recorded the statement of P. W. 5. On 03-12-1991, he received death intimation from Government Hospital, sangareddy, and altered the Section of law from Section 307 of Section 302 IPC, and handed over the C. D. file to the Inspector of police for further investigation. Ex. P-5 is the alteration memo and Ex. P-6 is the statement of the deceased. This witness also was cross-examined. ( 15 ) P. W. 10 is the Civil Assistant Surgeon, who deposed that on 19-11-1991, one patient by name Khasim Saheb, resident of Rampur village was admitted in the hospital at 6. 40 p. m. with stabbing injuries on his abdomen and he was referred to surgical ward from causality ward and his general condition was not good and he also deposed the injuries and had stated that on 27-11-1991, wound infection developed, foul smell was coming, faceal fistula had developed and he was treated for the same on 02-12-1991. On 03-12-1991 at 12-15 p. m. he died. On 03-12-1991, the Munsif Magistrate was called, patient was drowsy, and therefore, the Magistrate could not record the dying declaration and he wrote the operation notes in the case diary, dated 19-11-1991. Ex. P-7 is the case sheet of the deceased. No doubt in the cross-examination, this witness deposed that the Magistrate came on20-ll-1991andnot on 03-12-1991 as stated by him. ( 16 ) THE evidence available on record may have to be carefully scrutinized, since this is a case based on circumstantial evidence. ( 17 ) IN Sharad Birdhichand Sarda v. State of maharashtra while dealing with the conditions to be fulfilled in a case against an accused based on circumstantial evidence, the Apex Court held that the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that his Court indicated that the circumstances concerned must or should and not may be established. It may be noted here that his Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : ( AIR 1973 SC 2622 ) where the following observations were made: "certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. " (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude ever possible hypothesis except the one to be pro ved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. ( 18 ) IN Ashok Kumar Chatterjee v. State of madhya Pradesh, the Apex Court held that: when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( 19 ) THE learned Counsel representing the appellant had pointed out that Ex. ( 19 ) THE learned Counsel representing the appellant had pointed out that Ex. P-6 was recorded by the police on 26-11-1991 and though ample opportunity was there to get the dying declaration of the deceased recorded by the Magistrate, the same was not done. Hence, the oral dying declarations may not be given much weight in view of the same. P-6 was recorded by the police on 26-11-1991 and though ample opportunity was there to get the dying declaration of the deceased recorded by the Magistrate, the same was not done. Hence, the oral dying declarations may not be given much weight in view of the same. ( 20 ) IN Khushal Rao s case (supra) at para 16, it was held as hereunder: on a review of the relevant provisions of the Evidence Act and of the decided cases is the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras high Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable; in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. ( 21 ) IT is a case of registering the crime under Section 307 of IPC, which was subsequently altered to Section 302 IPC, in view of the subsequent death of the victim. Dying declaration would be recorded only in the expectation or anticipation of the death of the victim and in view of the doubt relating to the survival or the collapse of the victim. Though some attempt was made at a particular point of time to get his dying declaration recorded by a Magistrate, the same was not taken to its logical end by the prosecution. That has made the serious ground of attack by the learned Counsel for the appellant. It is no doubt true that Ex. P-6 was recorded by police. It is not so the facts that the prosecution is placing reliance on ex. P-6 alone, there is other evidence available on record. ( 22 ) IN Laxmi s case (supra), the Apex court observed that though the dying declaration made to Police Officer is admissible, such practice is to be disapproved. There cannot be any controversy about this aspect of the matter. The oral dying declarations made to P. W. 1, 3 to 5 on careful scrutiny would definitely inspire the confidence of the Court, since the version said to have been made by the deceased to these witnesses is clear, categorical and consistent. Certain contradictions were pointed out to be the variations in the evidence of P. Ws. 3 to 5. These are only minor discrepancies. Though p. W. 3 had stated that he was not examined by police, the same was clarified by the investigating officer ( 23 ) ELABORATE submissions were made on the delay in making the FIR and the dispatch thereof. Strong reliance was placed on marudanal Augusti s case (supra) and munshiprasad s case (supra) the Apex Court while dealing with the delay in dispatching the FIR to the Magistrate had arrived at a conclusion that if otherwise, it is reasonable and trustworthy, it would not be fatal to the case of the prosecution. ( 24 ) RELIANCE also was placed on State of assam s case (supra) and Ananta Mahanto s case (supra) in this regard. There cannot be any controversy relating to the settled propositions of law. ( 24 ) RELIANCE also was placed on State of assam s case (supra) and Ananta Mahanto s case (supra) in this regard. There cannot be any controversy relating to the settled propositions of law. Yet other contention, which has been advanced, is that even from the very nature of injuries it would be highly doubtful whether such oral dying declarations could have been made by the deceased or not. This is only the contention advanced, which does not find any favour from this Court. P. W. 2 had explained the motive. In Udaipal Singh v. The State of U. P. while dealing with a case on circumstantial evidence and motive, the Apex Court observed that in cases where only circumstantial evidence is available, at the outset one considers the motive and the opportunity to commit the crime and if the evidence shows that the accused having a strong motive had the opportunity of committing the crime and the established circumstances on the record considered along with the explanation if any of the accused, exclude the reasonable possibility of any one else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all human probability the crime must have been committed by the accused and he may be held guilty in such a case on such circumstantial evidence. The same view was expressed in Daya Ram v. The state (Delhi Administration ). ( 25 ) YET another faint attempt was made by the learned Counsel representing the appellant relating to the aspect of non- recovery and non-examination of Pandu ranga Reddy and the son of Ananthaiah. The chain of events or the connecting links were spoken by other witnesses, and hence, the non-examination of these witnesses cannot be said to be in any way fatal, and for the reasons well explained by the learned judge, the absence of recovery also may not vitiate the version of the prosecution. The chain of events or the connecting links were spoken by other witnesses, and hence, the non-examination of these witnesses cannot be said to be in any way fatal, and for the reasons well explained by the learned judge, the absence of recovery also may not vitiate the version of the prosecution. ( 26 ) AS already referred to supra, the version of the prosecution may have to be appreciated in the backdrop of the factual matrix and this is a case where initially the death of the deceased was not visualized and subsequent thereto because of the subsequent events, the charge was altered, I had given my anxious consideration to the material available on record and also the findings recorded by the learned Judge. I am thoroughly satisfied that on recording convincing reasons the learned Judge had arrived at the correct conclusion and rightly had convicted the accused under Sec. 304-II ipc. ( 27 ) IT is brought to my notice that appellant-accused is having tender children, old parents, large family is depending on him and he is the sole bread-winner of the family and the matter has been pending since a long time too. Taking the over all facts and circumstances into consideration, the sentence of eight years imposed by the learned Judge is reduced and modified to the sentence of five years. ( 28 ) THE Criminal Appeal is accordingly dismissed subject to the above modification of the sentence. The bail bonds of the appellant-accused are hereby cancelled.