JUDGMENT - BRAHME P.S., J.: - Prakash s/o Wamanrao Lakde, the appellant herein, has preferred this appeal challenging the judgment and order passed by the learned Additional Sessions Judge, Amravati in the Sessions Trial No. 91 of 1994 on 31-8-2001, wherein the appellant-accused was convicted for the offence under section 304-I of the Indian Penal Code and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for a period of six months. 2. Prosecution case, in brief, is that on 15-1-1994 victim Munna Chavan, who was the son of witness Mohansing Chavan (P.W. 4), r/o. Village Bhatkuli, which comes under the Police Station, Kholapur, had gone to the pan shop of one Harish Rambhau More (P.W. 2) situated near the S.T. Stand with his friend Jeeven Athawale (P.W. 1) around 10.30 a.m. After having pan from the shop, deceased Munna and his friend Jeeven Athawale were standing in front of the pan shop when, at once, the appellant came there from the back side and suddenly inflicted three knife blows on the buttocks and thighs of deceased Munna, as a result of which Munna sustained multiple bleeding injuries on his buttocks and thighs and when he raised shouts, the appellant-accused fled away carrying knife with him. Witness Jeevan Athawale rushed to Mohansing Chavan (P.W. 4) who was working in the Primary Health Centre, Bhatkuli and informed him about assault on his son- victim Munna. Mohansing rushed to see his son and he noticed that his son Munna had sustained bleeding injuries on his buttocks and thighs and he was unable to walk. Hence, he brought his son with the assistance of witness Jeevan Athawale to the Primary Health Centre, Bhatkuli where he was treated by Medical Officer Dr. Manoj Mundhada (P.W. 15). Mohansing went to the Police Outpost, Bhatkuli and there he lodged his report (Exh. 28), which was taken by A.S.I. Marotrao Sukhedeo (P.W. 14). On the basis of that report (Exh. 28), A.S.I. Sukhdeo prepared occurrence report at Police Outpost, Bhatkuli and the offence under section 307 of the Indian Penal Code was registered against the appellant-accused. Police H.C. Sukhdeo (P.W. 14) rushed to the Primary Health Centre, Bhatkuli and in presence of Dr. 28), which was taken by A.S.I. Marotrao Sukhedeo (P.W. 14). On the basis of that report (Exh. 28), A.S.I. Sukhdeo prepared occurrence report at Police Outpost, Bhatkuli and the offence under section 307 of the Indian Penal Code was registered against the appellant-accused. Police H.C. Sukhdeo (P.W. 14) rushed to the Primary Health Centre, Bhatkuli and in presence of Dr. Mundhada and two panchas, after having satisfied that the victim was conscious and fit to speak, he recorded statement vide Exh. 66 as per the disclosure made by the victim. Dr. Mundhada, after giving primary treatment to the victim, referred him to the General Hospital, Amravati for further medical treatment as condition of the victim was deteriorating since the bleeding had not stopped. It is a matter of record that Munna, after he was brought to the Civil Hospital, Amravati was operated. However, victim Munna succumbed to the injuries in the Civil Hospital, Amravati at about 7.30 p.m. on the same day while under treatment. 3. A.S.I. Sukhdeo. on returning to the Police Station, Kholapur, submitted the dying declaration (Exh. 66) and occurrence report (Exh. 28) to the Police Station Officer Kisanrao Lanjewar (P.W. 12), who, on the basis of that, prepared the First Imformation Report (Exh. 59). As the offence was registered, P.S.I. Pande (P.W. 11), who was then attached to Police Station, Kholapur, took up investigation and arrested the appellant-accused on the same day at 5.00 p.m. and visited the place of occurrence and prepared panchanama (Exh. 30). On the same day, P.S.I. Pande prepared inquest panchanama (Exh. 24) regarding the dead body of deceased Munna and handed over the dead body to the Medical Officer, General Hospital, Amravati for post-mortem. On the next day, he seized the blood stained clothes of deceased in presence of panchas under panchnama under panchanamas Exhs. 40 and 41. He also seized blood stained clothes of the father of Munna namely Mohansing (P.W. 4) under panchanama (Exh. 42). 4. Dr. Ashok Lande (P.W. 13) Medical Officer attached to the General Hospital, Amravati carried out autopsy on the dead body of victim Munna and submitted post-mortem report (Exh. 63). While performing the post-mortem, he noticed external injuries as described in column No. 17 as under: i. Suitured wound 7" in length extending from ½" above umbilicus to ½" about public symphasis. There were 14 stitches. ii. 63). While performing the post-mortem, he noticed external injuries as described in column No. 17 as under: i. Suitured wound 7" in length extending from ½" above umbilicus to ½" about public symphasis. There were 14 stitches. ii. Corrugated rubber drain over right Iliac fossa over abdominal cavity. iii. Plain rubber catheter going upto peritonial cavity over left Iliac fossa, iv. Suiterred wound 3" in length over posterior aspect of upper part of left thigh with four stitches, v. Suitured wound 3' length obliquely placed over he left buttock with three stitches, vi. Suitured wound 6" in length obliquely placed over anterior aspect of middle third thigh to left thigh with 10 stitches rubber drain seen at upper end of injury, vii. venesection injuries noted over both ankle joints. On dissection of the body, he noticed as under: Suitured wound beneath injury No. 1 of Column No. 17. Blood cloths were seen in peritonium cavity. Multiple suiturings seen over mesentry. Anterior wall of bladder was found suitured of size 2½" in length. Catheter drain through suitured wound was seen. Posterior wall of bladder was found suitured 2½" in length. 5. In his opinion, cause of death of victim was shock due to the injuries occurred to the bladder and due to mesentric injuries with mensentric vessels cut. 6. The weapon was referred to Dr. Lande to seek his opinion as to whether the injuries which he found on the dead body of the victim could be caused by the knife. He, accordingly, issued certificate (Exh. 64) giving his opinion that the injuries Nos. 1, 4, 5 and 6 mentioned in Column No. 17 of the post- mortem report could be caused by the weapon knife sent to him. 7. P.S.I. Pande, on 20th January, 1994 while the accused was in the custody, when interrogated the accused, he made his disclosure about concealing of knife and showed his willingness to produce the same from the place where it was concealed. Accordingly, he prepared memorandum vide Exh. 43 and in pursuance thereof, the appellant, on going to his house, took out the knife which came to be seized under seizure memo (Exh. 44). P.S.I. Pande also seized blood stained shirt and blood stained trouser from the person of the accused under seizure memo (Exh. 34). All the articles seized were sent on 10-2-1994 to the Chemical Analyser, Nagpur for examination. 44). P.S.I. Pande also seized blood stained shirt and blood stained trouser from the person of the accused under seizure memo (Exh. 34). All the articles seized were sent on 10-2-1994 to the Chemical Analyser, Nagpur for examination. After completing investigation, the charge-sheet was field against the appellant-accused in the Court of Judicial Magistrate, First Class, Amravati, Court No. 7, who in turn, committed the case to the Court of Sessions at Amaravati for trial. 8. The learned Additional Sessions Judge, Amravati framed charge for the offence under section 302 of the Indian Penal Code for committing murder of victim Munna and the appellant, when his plea was recorded, denied the charge and claimed to be tried. His defence was that of total denial. 9. At the trial, prosecution examined in all sixteen witnesses including Jeevan Rambhau Athawale (P.W. 1), Harish Rambhau More (P.W. 2), Vishwas Pandurang Dhandge (P.W. 3) and the eye-witnesses to the incident : Mohansingh Chavan (P.W. 4), father of the victim who lodged the report (Exh. 28), Pralhad Sukhdeo Sarode (P.W. 5), Kailash Uttamrao Khedkar (P.W. 6) a panch witness on recovery of weapon on the basis of disclosure statement of the appellant Shankar Kisan Shende (P.W. 7) panch witness, Namdeo Dhawale (P.W. 8) panch witness in whose presence dying declaration (Exh. 66) came to be recorded by A.S.I. Sukhdeo, PSI Sanjay Bhikaji Pande (P.W. 11) who carried out the investigation, Police Head Constable Kisanrao Rajaram Lanjewar (P.W. 12) who registered the offence at Police Station, Kholapur, Dr. Ashok Vithalrao Lande (P.W. 13) who recorded the complaint and dying declaration of Munna, Dr. Manoj Shankarlal Mundhada (P.W. 15) the Medical Officer attached to the Primary Health Center, who gave first aid to the victim and also issued certificate in respect of injuries vide Exh. 17. 10. The appellant-accused was also examined under section 313 of the Code of Criminal Procedure after the prosecution evidence was over, as could be seen from the replies given by him to the question put to him, he denied the circumstances and the evidence appearing against him. The appellant accused did not lead any defence evidence. The eye-witnesses so also, the panch witnesses on recovery of weapon did not support the prosecution. They were declared hostile. Prosecution was, therefore, left with the evidence of Police Officers, complainant Mohansingh who reported occurrence of assault on his son and the medical evidence. The appellant accused did not lead any defence evidence. The eye-witnesses so also, the panch witnesses on recovery of weapon did not support the prosecution. They were declared hostile. Prosecution was, therefore, left with the evidence of Police Officers, complainant Mohansingh who reported occurrence of assault on his son and the medical evidence. The trial Court, accepting the evidence of prosecution in that regard, found that the appellant-accused was responsible for homicidal death of victim Munna. The trial Court, however, found him guilty of the offence under section 304-I of the Indian Penal Code holding that it was a case of culpable homicide not amounting to murder. Accordingly, the appellant came to be convicted and sentenced as stated above. Hence, this appeal. 11. I have heard Mr. Trivedi, learned Counsel for the appellant-accused and Mr. Mandape, learned A.P.P. for the respondent-State. I have also gone through the judgment of the trial Court, as also the evidence recorded, with the assistance of the learned Counsel for the parties. Before adverting to the submissions made by the learned Counsel, it is appropriate to state few facts about which there is no dispute and the same have been clinchingly established on the evidence. Victim Munna Chavan was assaulted with knife on the date of occurrence and in that assault, he sustained injuries. Dr. Mundhada, who was Medical Officer attached to the Primary Health Center, Bhatkuli, examined victim Munna and treated the injuries. Dr. Mundhada issued certificate (Exh. 70) in respect of the injuries which he noted on the person of victim Munna. As per the certificate (Exh. 70), there were two stab injuries on left thigh on anterior aspect and one stab injury on right thigh on posterior aspect. Dr. Mundhada has stated in his evidence and also in the certificate (Exh. 70) that the victim was referred to the General hospital, Amravati for further treatment as the bleeding was not stopping. Victim Munna, after he was admitted in the hospital on the same day, around 7.40 hours succumbed to the injuries. As pointed out earlier, Dr. Lande (P.W. 13), while carrying out autopsy on the dead body of Munna, noticed external as well as internal injuries as described in detail in the post-mortem report (Exh. 63). It is not disputed that the external injury Nos. i, ii, iii and vii were surgical wounds, while external injury Nos. As pointed out earlier, Dr. Lande (P.W. 13), while carrying out autopsy on the dead body of Munna, noticed external as well as internal injuries as described in detail in the post-mortem report (Exh. 63). It is not disputed that the external injury Nos. i, ii, iii and vii were surgical wounds, while external injury Nos. iv, v and vi were the injuries caused by the knife. These three external injuries were tallied with the injuries which Dr. Mundhada noted in his certificate (Exh. 70). It is further a matter of record that Dr. Ashok Lande, while dissecting the body, noticed suitured wound beneath the external injury No. 1 and he found blood cloths in peritonium cavity, multiple suiturings over mesentry, anterior wall of bladder was found suitured of size 2½" in length, so also catheter drain through suitured wound was seen and posterior wall of bladder was found suitured 2½" in length. It is a mater of record that after Munna was admitted in the General hospital, Amravati, he was operated. That is why Dr. Lande, while conducting autopsy, noted sutured surgical wound to which reference is made earlier. There is no dispute about suiture wound Nos. 4, 5 and 6 as the injuries caused as a result of assault. But, so far as injury No. 1 to which corresponding internal damage was found to be fatal, the opinion of the doctor is not definate. Dr. Ashok Lande, in his evidence, has stated as to his opinion about the cause of death of deceased Munna. According to him, Munna died due to shock due to the injuries occurred to bladder and due to mescentric with mesentric vessels cut. Dr. Ashok Lande, when the knife was referred to him to seek his opinion as to whether the injuries suffered by the victim were possible by knife, gave opinion that the injury Nos. 1, 4, 5 and 6 mentioned in Column No. 17 can be caused by the weapon i.e. knife referred to him. However, in his cross-examination, he has stated that injury No. 1 may be surgical wound and the Medical Officer, who performed operation on the patient, was the best person to say whether the injury was surgical or it was caused injury. In his evidence, he has stated that mysentric vessel is the main blood vessel and on the cut of that vessel, profused bleeding takes place. In his evidence, he has stated that mysentric vessel is the main blood vessel and on the cut of that vessel, profused bleeding takes place. There is no manner of doubt in accepting the evidence of Dr. Ashok Lande to hold that external injury No. 1, as described in Column No. 17 of the post-mortem report, is a surgical wound. The basis for coming to the conclusion that the injury No. 1 was surgical wound is that Dr. Mundada, who was the first Medical Officer to treat the victim, though noted external injuries as described in his certificate (Exh. 70), did not notice external injury No. 1 referred in Column No. 17 of the post-mortem report. This is sufficient to indicate that external injury No. 1 was not suffered by the victim when he was examined by Dr. Mundada. Dr. Mundhada, as he did not probe into the external injury, much less alleged injury No. 1, he could not know about the internal damage suffered corresponding to external injury No. 1. This is in the sense that internal damage, as noticed by Dr. Ashok Lande, came to the light when Dr. Lande, while carrying out autopsy on the dead body, probed or dissected external injury No. 1. Therefore, this leave no manner of doubt that the external injury No. 1, as described in Column No. 17 of the post-mortem report, is a surgical wound. So far as internal damage corresponding to injury No. 1 is concerned, the best person to speak about it was the doctor who operated the victim. The unfortunate part of the prosecution case is that the doctor who operated the victim has not been examined as a witness. Dr. Ashok Lande has given specific opinion that the internal damage caused was fatal and was the only cause for the death of the victim. In that also, cutting of mysentric vessel, which is the main blood vessel, was the main cause for death of the victim which led to profuse bleeding. In the absence of evidence of the doctor who operated the deceased, it cannot be said that the internal damage caused resulted into cutting of the main blood vessel which was the result of assault with the knife. That is much more so when D. Ashok Lande has stated that injury No. 1 might be a surgical wound. In the absence of evidence of the doctor who operated the deceased, it cannot be said that the internal damage caused resulted into cutting of the main blood vessel which was the result of assault with the knife. That is much more so when D. Ashok Lande has stated that injury No. 1 might be a surgical wound. In this context, the possibility of internal damage due to cutting of main blood vessel when the victim was perated cannot be ruled out. If that is so, it has to be said that the said injury due to cutting of the main blood vessel was surgical wound which might have been caused while probing the injury while tracing the cause of excessive bleeding which did not stop. 12. The evidence of witness Mohansing lends assurance to the fact that his son Munna was assaulted and having suffered stab wounds on his thighs, he was brought to the Primary Health Centre, where Dr. Mundada examined him. Witness Mohansingh has further stated in his evidence that he went to Outpost Bhatkuli and lodged report (Exh. 28). We get from the report (Exh. 28) that one Jeevan Athawale was with victim Munna when they had gone to the pan shop of Harish More and there the appellant Prakash came from behind assaulted deceased Munna with knife on his buttock. In his evidence, witness Mohansing has stated that some persons came to the place where he was working i.e. Primary Health Centre, Bhatkuli and told that accused Prakash assaulted his son by means of knife. That is what it is reflected in the report (Exh. 28). It is true that witness Mohansing was not eye-witness to the incident of assault on his son; but he, after having been informed at Primary Health Centre, Bhatkuli that his son was assaulted by appellant Prakash and after his son was brought to the Primary Health Centre for treatment, immediately went to the Outpost and lodged report (Exh. 28) making disclosure of the fact that his son was assaulted by the appellant. There was no time for witness Mohansing to concoct a false case against the appellant nor there was any reason for him to implicate the appellant falsely. In addition to this, in the dying declaration (Exh. 28) making disclosure of the fact that his son was assaulted by the appellant. There was no time for witness Mohansing to concoct a false case against the appellant nor there was any reason for him to implicate the appellant falsely. In addition to this, in the dying declaration (Exh. 66), which was recorded by the Police Head Constable, the victim has specifically disclosed the fact that he was assaulted by the appellant with knife when he had been to the pan shop. It is not the case of prosecution, much less of witness Mohansing that he was present when statement of victim was recorded in the presence of Medical Officer Dr. Mundhada by the Police Officer. In my opinion, therefore, reflection of the name of appellant in the report (Exh. 28) as the assailant assumes authenticity. In this scenario, the factum of assault on the victim at the time and place and that too with the weapon like knife and the injuries having been caused in that assault is not disputed by the defence. 13. It is true that as witnesses Jeevan Athawale (P.W. 1). Harish Rambhau More (P.W. 2) and Vishwas Pandurang Dhandge (P.W. 3) though are claimed by the prosecution to be eye-witnesses to the incident, they did not support the prosecution. That is why prosecution was left with the evidence of witness Mohansing dying declaration (Exh. 66) which was infact recorded as statement of victim when he was lying injured and brought in the Primary Health Centre, Bhatkuli and the report (Exh. 28) which was lodged by witness Mohansing in police out post, Bhatkuli. The trial Court has accepted the evidence of Mohansing as well as the statement of victim in dying declaration (Exh. 66) indicating the appellant as an assailant. This evidence has been criticised on number of grounds by the learned Counsel for the appellant. In this context. I will now consider the submissions of the learned Counsel for the appellant-accused taking his grounds one by one. 14. Witness Marotra Sukhdeo (P.W. 14), who was on duty at out post, Bhatkuli on 15-1-1994 recorded the report (Exh. 28) given by witness Mohansing wherein it was disclosed explicitly by witness Mohansing that the appellant Prakash assaulted victim Munna by means of knife. On receipt of that report (Exh. 14. Witness Marotra Sukhdeo (P.W. 14), who was on duty at out post, Bhatkuli on 15-1-1994 recorded the report (Exh. 28) given by witness Mohansing wherein it was disclosed explicitly by witness Mohansing that the appellant Prakash assaulted victim Munna by means of knife. On receipt of that report (Exh. 28), witness Marotrao prepared occurrence report and went to the Primary Health Centre, Bhatkuli where the victim was admitted having suffered multiple bleeding injuries and then he recorded the statement of victim Munna in presence of Medical Officer Dr. Mundhada and two panchas. That statement of victim Munna (Exh. 66) has been relied upon by prosecution as dying declaration. It is matter of record that on the report lodged by Mohansing vide Exh. 28 offence was registered at Police Station, Kholapur against the appellant and the First Information Report (Exh. 59) was drawn by Police Head Constable Kisanrao Lanjewar (P.W. 12). The sequence of events was that witness Marotrao Sukhdeo, after having recorded the report (Exh. 28) lodged by witness Mohansing at out Post, Bhatkuli went to Police Station, Kholapur to hand over that report (Exh. 28) to witness Kisanrao Lanjewar (P.W. 12), who then in turn registered the offence against the appellant on the basis of that report on drawing First Information Report (Exh. 59). Witness Marotrao Sukhdeo, after handing over the papers and report (Exh. 28) to witness Kisanrao Lanjewar at Police Station, Kholapur, went to the Primary Health Centre, Bhatkuli to record the statement (Exh. 66) of the victim. In his evidence, he has stated the manner in which he recorded the statement (Exh. 66) of the victim. Prosecution also examined panch witness in whose presence the statement was recorded. However, both the witnesses did not support the prosecution. The only witness who supported the prosecution was Dr. Mundhada (P.W. 15), who emphatically stated that statement of the victim was recorded by the Police Officer Marotrao in his presence. The learned Counsel for the appellant-accused pointed out that on the statement (Exh. 66) there is no endorsement by the Medical Officer about the mental and physical fitness and capability to make statement of the victim. The statement does not bear the signature of the victim. The learned Counsel vehemently submitted that both the witnesses Dr. The learned Counsel for the appellant-accused pointed out that on the statement (Exh. 66) there is no endorsement by the Medical Officer about the mental and physical fitness and capability to make statement of the victim. The statement does not bear the signature of the victim. The learned Counsel vehemently submitted that both the witnesses Dr. Mundhada and Marotrao Sukhdeo have not stated in their evidence, in their examination-in-chief in particular, that the victim was conscious and physically fit and capable to make statement. He also submitted that in the Occurrence Report (Exh. 59), so also in the first information report lodged by witness Mohansing, there is no reference of the statement (Exh. 66) of the victim disclosing the fact that the victim came to be assaulted by the appellant with the knife. Absence of reference to his statement (Exh. 66) in the first information report, the report (Exh. 28) and absence of endorsement as to physical and mental fitness of the victim and signature of the victim on the statement are the factors which bring out inherent infirmity touching truthfulness and genuineness of the statement. In the absence of any cogent explanation by the witness for pausity of this evidence, in the backdrop of the fact that the so-called dying declaration has been recorded by the Police Officer, according to Mr. Trivedi, learned Counsel for the appellant, the matter appears to be suspicious and that leads to discard the dying declaration (Exh. 66) and if that statement is excluded from consideration, involvement of the appellant in committing assault on the victim is not at all proved by the prosecution. The learned Counsel placed reliance on the decision of the Apex Court in 2001(6) S.C.C. 118 , (Laxmi v. Om Prakash others)1. In that case, admittedly, the dying declaration was recorded by the Police Officer. There was no evidence to show nor it was reflected in the dying declaration and evidence that the victim was in a fit mental and physical condition to make the dying declaration. Therefore, the Apex Court found that no reliance could be placed on the dying declaration and as such, since there was no other evidence to connect the accused with the crime, conviction was set aside. 15. Therefore, the Apex Court found that no reliance could be placed on the dying declaration and as such, since there was no other evidence to connect the accused with the crime, conviction was set aside. 15. The Apex Court observed as under: "a dying declaration not being a deposition in Court, neither made on oath nor in the presence of the accused therefore, not tested by cross-examination is yet admissible in evidence as an exception to the general rule against the admissibility of hearsay. The admissibility is founded on the principle of necessary. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. The weak points of a dying declaration served to put the Court on its guard while testing its reliability and impose on the Court an obligation to closely scrutinise all the relevant attendant circumstances. If in a given case a particular dying declaration suffer from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming a safe basis for conviction." 16. It is further observed as under: "One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of makings a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. It the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state make the statement the Court may in the absence of corroborating evidence lending assurance to the contents of the declaration refuse to act on it." "A dying declaration made to a Police Officer is admissible in evidence, however, the practice of dying declaration being recorded by an Investigating Officer has been discouraged and the Supreme Court has urged the Investigating Officers to avail the service of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the Police Officer." 17. Bearing in mind the above principles laid down by the Apex Court, let us scrutinize the evidence. The situation that prevailed when the Police Officer went to the Primary Health Centre, Bhatkuli was that the injured victim was profusely bleeding having suffered multiple injuries. The Medical Officer Dr. Mundhada has elaborately stated in his evidence as to the condition of the victim. It is apparent on record from his evidence that after providing preliminary treatment just to stop the bleeding, the Medical Officer advised and in fact, accordingly the victim was removed to the General hospital, Amravati for further treatment. The victim was almost shouting due to pain and agony. It was in that situation that the Police Officer Marotao Sukhdeo (P.W. 14) himself thought it if to record the statement of victim himself. In that situation immediate recording of the statement of the victim was absolutely necessary having regard to the precarious condition of the victim. There was not the time to wait for calling any Magistrate for recording statement of the victim. Therefore, having regard to that situation, I do not think that there is any error committed by the Police Officer Marotrao in deciding to record the statement by himself. 18. There was not the time to wait for calling any Magistrate for recording statement of the victim. Therefore, having regard to that situation, I do not think that there is any error committed by the Police Officer Marotrao in deciding to record the statement by himself. 18. It is borne out in the evidence of witness Marotrao (P.W. 14) and that of Dr. Mundhada (P.W. 15) that the statement of victim was recorded in the presence panchas and the doctor. Witness Marotrao has specifically stated so in his evidence before the Court and that fact is not controverted by the defence specifically. It is very material to note that the defence has given suggestion to the witness Dr. Mundhada that the victim was not fit physically and mentally to make statement and that his statement was not recorded in his presence. The witness has stoutly denied the suggestion. Therefore, it is implicitly clear from the evidence of witness Marotrao and Dr. Mundhada that the victim was physically and mentally fit to make statement and his statement was recorded when he was physically and mentally fit to give statement. The only infirmity, therefore, is that no specific endorsement as to physical and mental fitness of the victim was made by the Medical Officer on the dying declaration (Exh. 66). In my opinion, in the evidence of witness Marotrao Sukhdeo and Dr. Mundhada, when factum of physical and mental fitness of the victim at the time when his statement was recorded, is spoken out and when that part of evidence as to physical and mental fitness of the victim is not impaired by any other circumstances, mere absence of endorsement on the dying declaration (Exh. 66), will not render the dying declaration unreliable. 19. It is true that witness Mohansing has not stated in his evidence about the dying declaration (Exh. 66) recorded by the Police Officer in the Primary Health Centre, Bhatkuli. It is true that in the report (Exh. 28), there is no reference to the recording of the dying declaration (Exh. 66). It is also true that in the Occurrence report and the First Information Report (Exh. 59) which was drawn on the basis of report (Exh. 28), there is no reference to the dying declaration (Exh. 66). It is true that in the report (Exh. 28), there is no reference to the recording of the dying declaration (Exh. 66). It is also true that in the Occurrence report and the First Information Report (Exh. 59) which was drawn on the basis of report (Exh. 28), there is no reference to the dying declaration (Exh. 66). But, if the sequence of events, as stated in the earlier part of the judgment, is taken into consideration, I do not think that any infirmity is spelt out in the dying declaration (Exh. 66). There is nothing on the record to show that when the dying declaration (Exh. 66) was recorded, witness Mohansing was present in the Primary Health Centre. As the record show, witness Mohansing, after having brought his son to the Primary Health Centre, immediately went to the out post, Bhatkuli to lodge report. It is only after his report was lodged and submitted to the Police Officer Marotrao Sukhdeo at Police Station, Kholapur, Police Officer came to the Primary Health Centre to record the statement of the victim. It is true that the statement (Exh. 66) does not bear the signature of the victim. However, the Medical Officer has stated about the same in his evidence. There is no reason to doubt the authenticity of the statement (Exh. 66) merely because the signature of the victim was not obtained. Therefore, with the evidence of witnesses Marotrao and Mr. Mundhada, the authenticity and truthfulness of the dying declaration (Exh. 66) is dully established. The trial Court has rightly placed reliance on the dying declaration (Exh. 66). It may be added that in the report (Exh. 28) which witness Mohansing has lodged independently on the basis of the information received, there is corroboration to what has been stated by the victim in the dying declaration (Exh. 66) as to assault on him by the appellant with the knife. 20. The learned Counsel for the appellant placed reliance on the decision of our High Court in 2003 Bom.C.R.(Cri.) 1025, (Dinesh Gopal Bhure v. State of Maharashtra)2, wherein it is held that the dying declaration recorded by the Police Officer is highly unsafe to accept. In that case, testimony of witness was to the effect that the victim was not in the position to speak even in the morning on 24th when daughter and brother visited her. In that case, testimony of witness was to the effect that the victim was not in the position to speak even in the morning on 24th when daughter and brother visited her. If that was the factual situation, nothing prevented the police from getting the statement recorded by the Magistrate. If that evidence was rejected because of admission in the cross-examination that the victim was not in a position to speak, then the declaration was recorded by the Police Officer became doubtful. It was in that factual position and situation that the Division Bench of this Court found that it was highly unsafe to accept the dying declaration recorded by the Police Officer to form basis for conviction. The factual position, as stated earlier in the case before hand, are entirely different. 21. The learned Counsel for the appellant-accused placed reliance on the decision of the Apex Court in 1999(7) S.C.C. 695 , (Paparambaka Rosamma and others v. State of A.P.)3. In that case, the Apex Court on facts found that the dying declaration was recorded by the Magistrate who made note that the victim was fit to make statement and the certificate given by the doctor at the ends of the dying declaration by merely stating that the patient was conscious while recording the statement. The Apex Court found that the doctor's certification not only about the consciousness but also about the fit state of mind of the deceased that existed before recording of the dying declaration was essential. In view of that serious infirmity and also some other infirmities, the Apex Court found it was unsafe to base conviction of the accused solely on the dying declaration. In the case before hand, as stated earlier, even though there is no endorsement or certificate by the Medical Officer on the dying declaration, the Police Officer as well as the Medical Officer have implicity stated in their evidence about the physical and mental condition and fitness of the victim when his statement was recorded. 22. Prosecution has also relied upon recovery of the weapon i.e. knife at the instance of the accused in pursuance of the statement made by him. 22. Prosecution has also relied upon recovery of the weapon i.e. knife at the instance of the accused in pursuance of the statement made by him. Acceptance of that evidence by the trial Court has been criticised by the learned Counsel for the appellant on the ground that the panch witnesses, in whose presence the alleged disclosure statement was made by the appellant, have not supported the prosecution and the Police Officer P.S.I. Pande, who recorded the statement and in whose presence the recovery was made, has not stated specifically about the memorandum statement made by the appellant. To substantiate his submission, the learned Counsel placed reliance on the decision of the Division Bench of this Court in 2004 All.M.R.(Cri.) 419 (Fakira Gopal Shende and others v. State of Maharashtra)4, of which I was one of the members. In that case, evidence of recovery of dead body of deceased at the instance of the accused has been discarded. On facts, it was found that the Investigating Officer though deposed about drawing of memorandum and panchanama in presence of panchas, nothing is stated by him showing that the interrogation of the accused was made in presence of panchas and the accused made disclosure statement in presence of panchas. Therefore, we found that the infirmity was consequent as there was no evidence to show that the alleged discovery was made by the accused in presence of panchas. The position in the case before hand is entirely different. It is no doubt true that the panch witnesses to the discovery have not supported the prosecution. But then, through the evidence of P.S.I. Pande (P.W. 11), the factum of disclosure statement made on interrogation by him and also recovery of weapon at the instance of the accused has been established. The witness has stated in his evidence that on 20-1-1994, during interrogation, the appellant made disclosure before him that he kept knife at his house while concealing on the wall below the roof in the verandah of his house and that he would produce the same. He further stated that he, therefore, called two panchas and prepared the memorandum statement of the accused accordingly in presence of panchas vide Exh. 43. He further stated that, after recording the memorandum (Exh. He further stated that he, therefore, called two panchas and prepared the memorandum statement of the accused accordingly in presence of panchas vide Exh. 43. He further stated that, after recording the memorandum (Exh. 43), the appellant had taken him and panchas to his village namely Bhatkuli and from the wall of his house, took out the knife which he seized under seizure memo (Exh. 44). This version of witness has remained unshaken, though he was subjected to cross-examination. Infact, there was no cross-examination on this point except the suggestion that the accused did not make disclosure statement before him or he produced anything. That suggestion was stoutly denied by the witness. If we read the evidence of witness P.S.I. Pande (P.W. 11) in correct perspective on the aspect of recovery, it is clear that the witness has stated about recording of memorandum (Exh. 43) in presence of panch witness, in which it is implicit that the disclosure statement was made as per the memorandum (Exh. 44) in presence of panch witnesses. It is further pertinent to note that in pursuance of statement, actually the knife has been recovered and seized on being produced by the appellant. That fact is dully established through the evidence of witness P.S.I. Pande. Therefore, the trial Court has rightly accepted that evidence of recovery of knife. 23. But then, it has been rightly observed by the trial Court that mere recovery of knife at the instance of the appellant in pursuance of the statement made by him was of no consequence because prosecution could not bring on record any incriminating circumstance as to detection of blood stains on that knife. It is very unfortunate situation that though the knife was sent along with other seized articles to the Chemical Analyser, prosecution could not place its hand on the report of the Chemical Analyser. In view of the paucity of that evidence, prosecution is deprived of the incriminating circumstance in that context. But then, the factum of recovery of knife at the instance of the accused in pursuance of the statement made by him has its own consequence which is very relevant, as it shows the authorship of knife with the appellant. In view of the paucity of that evidence, prosecution is deprived of the incriminating circumstance in that context. But then, the factum of recovery of knife at the instance of the accused in pursuance of the statement made by him has its own consequence which is very relevant, as it shows the authorship of knife with the appellant. The fact that the appellant has concealed that knife in the roof top of his house in my opinion, is certainly an incriminating circumstance which lends assurance to the other evidence spelling out involvement of the appellant. 24. In the final analysis on the evidence on the record, it is established that the appellant-accused assaulted the victim with knife causing multiple injuries on his buttocks. Involvement of the appellant in commission of crime is further established by the fact that the appellant had a very strong motive to assault the victim. That is established through the evidence of witness Harish More (P.W. 2). Witness Harish More has testified that on earlier Tuesday to the occurrence of incident, some altercation between Munna (deceased) and Prakash Lakade (accused) had taken place in front of his betel shop and that quarrel was intervened by some persons. The trial Court has observed that, that incident of quarrel did show that the accused had grudge against the victim and that was the motive for the accused to assault the victim. This lends assurance to what has been stated by complainant Mohansing in his report that the appellant assaulted his son. That is further fortified by the statement of the victim in the dying declaration (Exh. 66) wherein he has explicity stated that he was assaulted by the appellant Prakash on account of enmity with the knife. Therefore, the trial Court was justified and right in holding the appellant-accused responsible for causing injuries on the person of victim Munna. 25. The vex question that falls for consideration is, accepting the fact the assault was by the accused with the knife and the victim has died homicidal death as a consequence of assault, what is the offence committed by the appellant-accused. The trial Court has taken into consideration the circumstances attending the case, as also accountability of the appellant consequent upon having assaulted the victim with the knife causing injuries and found that the offences made out was that under section 304-I of the Indian Penal Code. The trial Court has taken into consideration the circumstances attending the case, as also accountability of the appellant consequent upon having assaulted the victim with the knife causing injuries and found that the offences made out was that under section 304-I of the Indian Penal Code. The trial Court took into consideration the fact that the injury No. 1 was fatal and that is because the internal damage corresponding to that injury No. 1 was rupture and cutting of the main blood vessel i.e. Mesentric vessel. But then, the trial Court found that, in the facts and circumstances, the appellant had no intention to kill the victim. But the trial Court found that the appellant could be imputed with the knowledge to cause injury sufficient to cause death. Mr. Trivedi, learned Counsel for the appellant vehemently submitted that, considering the medical evidence on the record, it is not at all proved that the injury which proved to be fatal was the result of assault by the appellant with the knife. In earlier part of the judgment, I have dealt with this aspect and I have found that the external injury No. 1, though it was suitured wound, no definite opinion by expert was given that it was the injury caused due to assault by knife. Referring to the evidence of doctor Dr. Ashok Lande, he, in his examination-in-chief stated that the external injury No. 1 may be possible by knife and accordingly, he has certified that the weapon was referred to him for opinion. In his cross-examination, he denied the suggestion that the injury No. 1 was surgical wound. But, immediately he hastened to add that injury No. 1 may be surgical wound and the Medical Officer who performed the operation on the patient was the best person to say whether injury No. 1 was surgical or it is caused injury. In the earlier part of the judgment, I have elaborately dealt with the situation and the cause of injury No. 1 It is found that Dr. Mundhada though was the first Medical Officer to examine the patient, did not notice injury No. 1 has been noticed by Dr. Ashok Lande when he performed autopsy. As described by him in his post-mortem report and as has been stated in his evidence, the external injury No. 1 was undoubtedly a surgical wound. Mundhada though was the first Medical Officer to examine the patient, did not notice injury No. 1 has been noticed by Dr. Ashok Lande when he performed autopsy. As described by him in his post-mortem report and as has been stated in his evidence, the external injury No. 1 was undoubtedly a surgical wound. That external injury No. 1 by itself was not fatal. What was fatal was the internal damage that was noticed by Dr. Ashok Lande when the dissection of the dead body was made while probing external injury No. 1. It was noticed that anterior wall of the bladder was found suitured. There was Catheter drain through suitured wound. There were multiple suiturings seen over mysentry. It was in this context that Dr. Ashok Lande hesitated and stated that the doctor who performed the operation would be in a better position to say as to whether the injury No. 1 or corresponding internal damage thereof was surgical wound or caused wound. As stated earlier, prosecution did not examine the doctor who performed the operation. In absence of his evidence, therefore, it is in the realm of suspicion as to how the fatal injury was caused. On the evidence on record, it cannot be said clinchingly that the fatal injury which was as a result of cutting of the mysentric vessel was caused as a result of assault with the knife. That is much more so because the three external injuries on the buttocks of the victim have been proved to be the injuries caused as a result of assault with the knife. That is why, the appellant is accountable for those injuries. In such a situation, holding the appellant responsible for fatal injury, which was found to be sufficient to cause death, does not seem to be correct. If that is so, the appellant cannot be found guilty for the offence under section 304-I of the Indian Penal Code, though death of the victim is caused due to fatal injury of cutting of the mysentric vessel resulting into profuse bleeding. In the absence of any evidence of Expert, possibility of that injury being caused at the time of operation performed by the doctor cannot be ruled out. In the absence of any evidence of Expert, possibility of that injury being caused at the time of operation performed by the doctor cannot be ruled out. Even there is nothing on the record to suggest that internal damage i.e. Rupture and cutting of mysentric vessel was corresponding to any of the external injuries caused on the thighs of the victim. Apart from that, having regard to the situation of location of internal damage, no knowledge could be attributed to the appellant even though it is accepted that he inflicted excessive blows with the knife on the thighs of the victim. In that view of the matter, the learned Counsel for the appellant is right in his submission that in the facts and circumstances of the case with paucity of evidence which the prosecution was required to adduce, the offence under section 304-I of the Indian Penal Code is not made out. On the other hand, accepting the accountability of the appellant for the external injuries on the thighs with the knife in my considered opinion the offence under section 326 of the Indian Penal Code is made out. In that context, I do not agree with the submission of the learned Counsel for the appellant that restricting to the injuries on the thighs the offence is made out is that under section 324 of the Indian Penal Code. So, the appellant is found guilty of the offence under section 326 of the Indian Penal Code. 26. I have heard the learned Counsel for the parties, Mr. Trivedi, learned Counsel for the appellant submitted that the appellant was in jail from 15-1-1994 till 3-9-1994 and he surrendered to his bail when the trial Court decided the matter and since 31-8-2001 he is jail. So, the period undergone by the appellant by now comes to about 3 years and five months. The learned Counsel submitted that considering the nature of the offence proved to have been committed by the appellant sentence for the period already undergone will be sufficient. Mr. Mandape, learned A.P.P. submitted that death of the victim was homicidal as a result of assault and therefore, even though the offence proved to have been committed is that under section 326 of the Indian Penal Code, severe sentence is called for. The appellant was 29 years old when the offence was committed. Mr. Mandape, learned A.P.P. submitted that death of the victim was homicidal as a result of assault and therefore, even though the offence proved to have been committed is that under section 326 of the Indian Penal Code, severe sentence is called for. The appellant was 29 years old when the offence was committed. There is nothing on the record to show that the appellant was involved in any other criminal case. It is no doubt true that the incident has occurred as a result of enmity between the victim and the appellant. Having regard to the nature of the offence proved to have been committed. I feel that the punishment of rigorous imprisonment of five years would be just and proper. The appellant will have to be allowed in part with modification in the conviction and sentence. Hence, the order. ORDER The appeal is partly allowed. The conviction of the appellant-accused for the offence under section 304-I of the Indian Penal Code and sentence awarded is set aside. Instead, he is convicted of the offence under section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. The appellant-accused is entitled to set off for the period already undergone by him in the jail and custody by now. Appeal partly allowed. -----