JUDGMENT (ORAL) P.B. Gaikwad, J.—Accused Baburao Nimkar being dissatisfied with the order of conviction and sentence passed by the Additional Sessions Judge, Bhandara in Sessions Case No. 139 of 1998 dated 6.1.2001 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay a fine of Rs.500/- in default R.I. for six months filed present appeal. 2. The facts, in brief, leading to the present appeal are as follows :- The appellant along with his wife Kalabai and two children namely Jitendra and Mahendra reside in Gautamnagar locality at Tumsar, District Bhandara. In the said house, the Nimkar family resides in three parts. In one part PW8 Fulchand elder brother of the appellant resides along with his family, in middle portion the present appellant along with his family used to reside while in another part younger brother of the present appellant used to reside. The part of the house is in possession of the present appellant consists of kitchen room, bedroom and varanda. The door faces towards the south. Marriage of deceased Kalabai was performed with appellant about 18 years’ back and the appellant having two sons namely Jitendra, aged about 15 years and Mahendra, aged about 10 years. The alleged incident took place on 24.10.1998 at about 4.00 p.m. deceased Kalabai was at her house while the present appellant came to the house at about noon time. He was working at the relevant time as meason. Since 2-3 days’ prior to the alleged incident, there was quarrel between deceased and the present appellant on account of payment of some electricity bill and on the day of incident when he returned to the house at noon time, it is alleged that there was quarrel between the appellant and deceased Kalabai on account of payment of electricity bill. The accused at that time took a pot of tin containing kerosene and threw on the person of Kalabai and thereafter set her on fire and due to which she sustained burn injuries. She made hue and cry for the help. PW 8 Fulchand Gangaram Nimkar the brother of the present appellant was at the relevant time in another part of the said house immediately came there. Mahendra the younger son of the appellant also came there. She made hue and cry for the help. PW 8 Fulchand Gangaram Nimkar the brother of the present appellant was at the relevant time in another part of the said house immediately came there. Mahendra the younger son of the appellant also came there. Some other neighbours including Antaram, Yashoda, Ashok Rokde also came there and tried to extinguish the flames. Jitendra the elder son of the present appellant immediately came there, who called auto-rickshaw and took Kalabai in the Government hospital at Tumsar. Dr. Ramteke (PW12) who was on duty at the relevant time immediately gave information as regards burn injuries sustained by Kalabai to the Police Station, Tumsar. A letter was sent along with PW 1 Hansraj, which is proved at Ex.20. Kalabai was thereafter referred to the Civil Hospital, Bhandara for further treatment. When Kalabai was in the hospital for treatment, she disclosed about the incident and cause of injury to mother Saraswatibai and son Jitendra (PW 3). She accordingly disclosed that the accused poured kerosene on her person and set her on fire. PW 8 Fulchand the brother of the accused immediately made a report to the police station in respect of the said incident and on the basis of said report Crime No. 230/98 was registered against the present appellant for the offence punishable under Section 307 of the India Penal Code. A requisition letter was given for recording a dying declaration and the dying declaration of Kalabai was accordingly recorded by PW 14 Deonath Meshram, which is proved at Ex. 47. Kalabai while she was under treatment at Bhandara succumbed to the burn injuries and Section 302 of the Indian Penal Code was accordingly added. PW 13 Ashok Sonwane after completing the investigation submitted charge-sheet against the accused for the offence punishable under Section 302 of the Indian Penal Code. As the offence under section 302 of the Indian Penal Code being exclusively triable by the Court of Sessions, the case was accordingly committed to the Court of Sessions at Bhandara. The same was made over to the Additional Sessions Judge, Bhandara who accordingly framed charge against the accused as per Ex.7 on 20.11.1999 for the offence punishable Section 302 of the Indian Penal Code, which was read over and explained to the accused, however, he pleaded not guilty to the charge and claimed to be tried. His defence is of total denial. 3. His defence is of total denial. 3. The prosecution, to connect the accused with the above said Crime, examined near about 16 witnesses. PW 1 is Hansraj Parasram Ilpate, a Ward Boy attached to the Government Hospital, Tumsar, who had been to the Police Station alongwith a letter given by the Doctor informing about the burn injuries sustained by Kalabai on 24.10.1998, which is proved at Ex.20. Evidence of this witness is at Ex.19. PW 2 is Saraswatibai Rajaramji Bhajipale, the mother of the deceased Kalabai. Her evidence is at Ex. 21. She visited the hospital where Kalabai was admitted due to burn injuries to her and Kalabai accordingly disclosed that the present appellant poured kerosene on her person on fire. PW 3 is Jitendra Baburao Nimkar son of the appellant who took Kalabai to the hospital in auto-rickshaw after she sustained burn injuries and before whom there is an oral dying declaration about the cause of burn injuries. Evidence of this witness is at Ex.22. PW 4 is one Antaram Vithoba; PW.5 is Yashoda Antaram Thakre; and PW 7 is Ashok Kisanji Rokde and all these witnesses are neighbours residing by the side of the house of present appellant and on the day of incident they tried to extinguish the fire, however, these three witnesses turned hostile. PW 6 is panch witness on the spot panchanama, attachment of clothes from the place of incident and the arrest panchanama. Evidence of this witness is at Ex.26. Panchanama as regards the seizure of certain articles and arrest panchanama and the attachment of clothes on the person of the accused at Ex.27, 28 and 29 are accordingly got proved. PW 8 Fulchand is the brother of present appellant who made a report to the Police Station, Tumsar and on the basis of it Crime was registered, however, this witness is turned hostile. PW 9 Dr. Milind Deshkar is the Medical Officer attached to the General Hospital, Bhandara who gave intimation to the police station about the death of Kalabai when she was taking treatment in the hospital on 29.10.1998. The said intimation is at Ex.34. Evidence of this witness is at Ex.33. PW 10 Vimal Ramchandra Desai Police Constable, a formal witness who deputed for carrying papers of accidental death No. 0/98 to police station, Tumsar and she accordingly took papers to Police Station, Tumsar. Evidence of this witness is at Ex.35. The said intimation is at Ex.34. Evidence of this witness is at Ex.33. PW 10 Vimal Ramchandra Desai Police Constable, a formal witness who deputed for carrying papers of accidental death No. 0/98 to police station, Tumsar and she accordingly took papers to Police Station, Tumsar. Evidence of this witness is at Ex.35. PW 11 is Kachru Nathuji Lunde, ASI attached to police station Tumsar and on 24.10.1998 he made a request to the Doctor to examine Kalabai. Doctor accordingly examined and given certificate about burn injuries sustained by Kalabai to the extent of 70%. Letter given by this witness is at Ex. 37 while the certificate given by the Doctor is at Ex.39. PW 12 is Dr. Padmakar Sukhram Ramteke, who was on duty at the Government Hospital, Tumsar. On 24.10.1998 when Kalabai was admitted in the hospital at about 4.15 p.m. he noticed near about 70% burn injuries over neck, upper limb thorax and abdominal wall up to public symphysis and other parts of the body. PW 13 is Ashok Sonwane PSI attached to Police Station, Tumsar, who investigated the above said crime referred the attached property from Crime to C.A. alongwith requisition letter (Ex. 41). C.A. report is at (Ex.42). PW 14 is Deonath Mansaram Meshram, Naib Tahsildar attached to Tahsil Office, Tumsar, who was on duty on 24.10.98 and recorded dying declaration of Kalabai. The evidence of this witness is at Ex.43. The requisition letter received to this witness is proved at Ex. 45. He thereafter ascertained the condition of Kalabai and thereafter recorded dying declaration, which is proved at Ex. 46. PW 15 is PSI Mohd. Iqbal Mohd. Hussain who initially investigated the above crime and recorded the statement of PW 8 Fulchand Nimkar and accordingly registered the crime, which is at Ex.51. The printed FIR is at Ex.52. He then visited the place of incident and prepared spot panchanama, attached certain articles, arrested the accused and the clothes which were on the person of the accused were also attached. This witness also recorded the statement of Kalabai when she was admitted in the hospital and the said statement is proved at Ex.54. PW 16 is Banwarilal Netlal Lilhare a police constable with whom the attached property of Crime No. 230/98 is referred to C.A. that is with the requisition letter (Ex.41). Evidence of this witness is at Ex.62. 4. This witness also recorded the statement of Kalabai when she was admitted in the hospital and the said statement is proved at Ex.54. PW 16 is Banwarilal Netlal Lilhare a police constable with whom the attached property of Crime No. 230/98 is referred to C.A. that is with the requisition letter (Ex.41). Evidence of this witness is at Ex.62. 4. Along with above oral evidence, the prosecution has also relied upon certain other documents, which is not disputed by the defence i.e. Ex.11 requisition letter issued by PSI to the Medical Officer for performing post-mortem. P.M. report is at Ex.15. 5. The Additional Sessions Judge after considering the above oral as well as documentary evidence on record, concluded that deceased Kalabai met homicidal death and the present appellant being the author of burn injuries sustained by Kalabai and accordingly, convicted the accused-appellant for the offence punishable under section 302 of the Indian Penal Code. The said order of conviction and sentence in Sessions Trial No.139/98 dated 6.1.2001 is challenged by filing the present appeal. 6. In appeal, we heard Mr. Daga, the learned Advocate for the appellant-accused and Mr. Jichkar, the learned Additional Public Prosecutor for the State at length. It is submitted by Mr. Daga, Advocate for the appellant that the order of conviction and sentence passed by the Additional Sessions Judge, Bhandara dated 6.1.2001 in Sessions Case No. 139/98 for the offence punishable under section 302 of the Indian Penal Code is not proper and justified. Firstly, according to him, the material witnesses examined by the witnesses i.e. PW3 Jitendra, PW 4 Antaram, PW 5 Yashoda, PW 7 Ashok and PW8 Fulchand turned hostile and have not supported the prosecution case. Inspite of this, the Court below wrongly convicted the appellant. He further submits that PW 8 Fulchand brother of the complainant who made a report and on the basis of which crime was registered turned hostile and, therefore, FIR remained to be proved. Inspite of this, the Court has wrongly relied upon the dying declarations made by deceased Kalabai. Thirdly, according to him, the evidence of PW 2 Sarswatibai and PW 3 Jitendra about oral dying declarations and evidence of PW 14 Deonath Meshram and PW 15 Mohd. Inspite of this, the Court has wrongly relied upon the dying declarations made by deceased Kalabai. Thirdly, according to him, the evidence of PW 2 Sarswatibai and PW 3 Jitendra about oral dying declarations and evidence of PW 14 Deonath Meshram and PW 15 Mohd. Iqbal about the dying declarations (Ex.46) and (Ex.54) being inconsistent on material particulars about the mental condition of the deceased, about the cause of burn injuries as disclosed by Kalabai to them and even though the Court below has wrongly relied upon that the said dying declarations which suffer from basic infirmities. According to him, the Court below has not properly scanned the evidence on record and misdirected himself in concluding that the said dying declarations being truthful and acceptable. He, therefore, submits to set aside the order of conviction and sentence. Lastly, in the alternative he prays that in case if this Court comes to the conclusion that the dying declarations on record are truthful and acceptable, according to him the alleged incident took place at the spur of moment without meditation and that too after 18 years’ of the marriage of deceased with the appellant. The requisite intention to spell out the offence under section 302 of the Indian Penal Code cannot be gathered safely, as according to him, the alleged incident took place on 24.10.1998; the injured Kalabai died on 29.10.1998; the Medical Officer who performed post-mortem has not been examined, however, the cause of death is given by the Medical Officer has not been disputed by the defence and the cause of death is Septicemia and, therefore, according to him the offence at the most will be under Section 304 part II of the Indian Penal Code as the Doctor has not given any opinion as regards the cause of both burn injuries but the cause of death is Septicaemia. He, therefore, submits that the appeal needs to be allowed and in case if the evidence adduced by the prosecution is relied upon at least the order of conviction needs to be modified as the appellant having two sons i.e. Jitendra and Mahendra hardly aged about 15 years and 10 years respectively and there is nobody to look after to them. In support of his contention, Shri Daga learned counsel for the appellant has placed reliance upon the Authority reported in Sadashiv Dhondiram Pandit v. The State of Maharashtra1. 7. In support of his contention, Shri Daga learned counsel for the appellant has placed reliance upon the Authority reported in Sadashiv Dhondiram Pandit v. The State of Maharashtra1. 7. Considering the submissions made on behalf of the parties to the appeal, it is now necessary to scan the evidence on record so as to consider whether the conclusion arrived at by the Court below is in conformity with the evidence on record; whether the dying declaration of Kalabai being truthful version and whether the Court below has rightly relied the same. Firstly, it is necessary to see whether Kalabai met homicidal death and for which a reference to Ex. 49 i.e. inquest (Ex.15) post-mortem report. Evidence of PW 12 Dr. Padmakar Ramteke and Ex. 20 and 39 is necessary. 8. On the other hand, it is submitted by Mr. Jichkar, the learned Additional Public Prosecutor for the State that the order of conviction and sentence is proper and justified. The Court below has properly scanned the evidence on record. The dying declarations are truthful further and the Court below has rightly relied upon the same as there is no possibility of tutoring and prompting. It is thus submitted that the order of conviction and sentence is proper and justified. He therefore, requests to dismiss the appeal, as the same being without merit. 9. On perusal of evidence of PW 3 Jitendra son of the present appellant. According to him, his younger brother Mahendra had been to him informing about the burn injuries sustained by his mother. He therefore, returned to the house. He thereafter brought one autorickshaw and took his mother to the hospital on 24.10.1998 at about 4.15 p.m. Evidence of PW 1 Hansraj further makes it clear that on 24.10.1998 he was attached to the Civil Hospital, Tumsar as a Ward boy. Dr. Ramteke was on duty. The injured was admitted in the hospital. Dr. Ramteke gave information accordingly in that respect to the Police and the letter was written, which is at Ex.20 and this witness has handed over the said letter to PSO, Tumsar. Evidence of PW 12 Dr. Ramteke further makes it clear that he was on duty as Medical Officer at Tumsar and at about 4.15 p.m. on 24.10.1998 Kalabai was brought to the hospital for treatment on account of burn injuries sustained by her. Evidence of PW 12 Dr. Ramteke further makes it clear that he was on duty as Medical Officer at Tumsar and at about 4.15 p.m. on 24.10.1998 Kalabai was brought to the hospital for treatment on account of burn injuries sustained by her. He informed to the police to that effect gave treatment to Kalabai. On examination Kalabai, he noticed 70% burn injuries and smelling kerosene. He further makes it clear that the requisition letter (Ex. 37) received by him from the Police Station ,Tumsar to examine Kalabai and on her examination, he noticed the following injuries:- 1.Burn over neck and face including both ears. 2.Burn over both upper limb thorax and abdominal wall upto public symphysis. 3.Complete back up to upper glueal area. 4.Both thighs anterior or posterior. 10. He also gave opinion that the burn injuries were fresh within three hours prior to his examination and also caused due to direct flame burns. He accordingly issued certificate (Ex. 39 ). Evidence of this witness further makes it clear that Kalabai was thereafter referred to the Civil Hospital, Bhandara for further treatment on 27.10.1998 and till 29.10.1998 she was an indoor patient, and she succumbed to bun injuries. The cause of death given by Medical Officer in the post mortem at Ex. 15 is Septicaemia. If the above evidence on record if read together with the evidence Ex.15, Ex.39 and Ex.49, we find that the finding given by the Court below that Kalabai the wife of the present appellant met homicidal death on 29.10.1998 is proper and justified. 11. The another aspect is prosecution case solely rests on dying declarations and therefore, it is necessary to see whether the reliance placed by the Court below on the said dying declarations is proper and justified. Before scanning the evidence on record and reasonings given by the Court for accepting the dying declarations of Kalabai, it is necessary to give a reference to one Authority i.e. Khushal Rao. vs. State of Bombay2. It is observed in the said Authority to the following effect:- “In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.” 12. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities.” 12. It is further observed in the said Authority to the following effect:- “It cannot be laid down as absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other kind of evidence; 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; 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 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 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, 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.” 13. A reference is also necessary to one another Authority Kali Chunilal Savji and another v. State of Gujarat3 wherein it is observed to the following effect:- “It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. A reference is also necessary to one another Authority Kali Chunilal Savji and another v. State of Gujarat3 wherein it is observed to the following effect:- “It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted, with regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness.” 14. A reference is also necessary to one another Authority i.e. Ravi Chander and others v. State of Punjab4 wherein it is observed to the following effect:- “for non-examination of Doctor dying declaration recorded by the Executive Magistrate need not be doubted. The Executive Magistrate is a disinterested witness and is a responsible officer. There is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or was anyway interested in fabricating the dying declaration and, therefore, the question of genuineness of dying declaration recorded by the Executive Magistrate to be doubted does not arise.” 15. A reference is also necessary to one Authority Laxman v. State of Maharashtra5 wherein it is observed to the following effect:- “Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.” 16. It is further observed in the said Authority to the following effect:- “It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration.” 17. A reference is also necessary to another Authority reported in Sohan Lal alias Sohan Singh and others v. State of Punjab6. It is observed to the following effect:- “Dying declaration found otherwise reliable – cannot be rejected – once ... dying declaration is creditworthy, the Courts below were justified in relying upon and convicting the accused” 18. A reference is also necessary to another Authority reported in Sohan Lal alias Sohan Singh and others v. State of Punjab6. It is observed to the following effect:- “Dying declaration found otherwise reliable – cannot be rejected – once ... dying declaration is creditworthy, the Courts below were justified in relying upon and convicting the accused” 18. A reference is also necessary to one another Authority (P.V. Radhakrishna v. State of Karnataka7) wherein it is observed to the following effect:- “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The principles governing dying declaration, which could be summed up:- (i)There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration; (ii)If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration; (iii)The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration; (iv)Where dying declaration is suspicious, it should not be acted upon without corroborative evidence; (v)Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected; (vi)A dying declaration which suffers from infirmity cannot form the basis of conviction; (vii)Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected; (viii)Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth; (ix)Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit conscious state to make the dying declaration, the medical opinion cannot be prevailed; (x)Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon; and (xi)Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted.” 19. Lastly, a reference is also necessary to one another Authority reported in (B. Shashikala v. State of Andhra Pradesh8) wherein it is observed to the following effect:- “The dying declaration is only a piece of untested evidence and must, like any other evidence, satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction even if there is no corroboration.” 20. Considering the above guidelines on record, it is now necessary to scan the evidence on record adduced by the prosecution so as to find out whether the dying declaration of Kalabai is trustworthy and acceptable. The first dying declaration is at Ex. Considering the above guidelines on record, it is now necessary to scan the evidence on record adduced by the prosecution so as to find out whether the dying declaration of Kalabai is trustworthy and acceptable. The first dying declaration is at Ex. 54 i.e. on 24.10.1998 when Kalabai was admitted in the Civil Hospital at Tumsar for treatment on account of burn injuries sustained by her. The said dying declaration is recorded by PW 15 Mohd. Iqbal Mohd. Hussain PSI attached to Police Station, Tumsar. On perusal of evidence of PW 15 on 24.10.1998 at about 4.15 p.m. he was in the police station. Fulchand PW 8 the brother of the present appellant had been to the police station and lodged report. PW 15 accordingly reduced the report in writing, which is at Ex.51 and on the basis of said report, he registered crime No. 230/98 for the offence under section 307 of the Indian Penal Code. He immediately then visited to the spot and thereafter prepared spot panchanama and some articles were seized. Thereafter he proceeded to the Government Hospital at Tumsar and recorded the statement of Kalabai. In his stat allegedly had fired gun shot at Darshan Singh deceased. He also collected the documents Ext. PW-6/A etc. from Punjab National Bank, Shahpur. 9. Further case of the prosecution was that on the day of incident, the accused came in the Police Station armed with a double barrel gun at about 8.05 p.m. He admitted before PW-20 ASI Negi Ram that he had fired gun shot at his brother-in-law Darshan Singh. PW-20 recorded the version of the accused in Rapat Ext. PW-19/D. The gun of the accused was taken into possession which was wrapped with a piece of cloth and sealed with seal impression ‘T’. The accused was arrested and was also medically examined. 10. As per report (Ext. PA) of the Scientific Officer, State Forensic Science Laboratory, Junga, gun Ext. P-7 was found in working order and one empty cartridge in the right barrel having been found fired from the gun and pellets four in numbers might be the part of the fired cartridges. 11. On completion of the investigation, PW-21 laid charge-sheet against the accused for the commission of offence under Section 302 IPC and under Sections 27/54/59 of Arms Act before the learned Judicial Magistrate. 12. 11. On completion of the investigation, PW-21 laid charge-sheet against the accused for the commission of offence under Section 302 IPC and under Sections 27/54/59 of Arms Act before the learned Judicial Magistrate. 12. The trial of the case was committed to the learned Sessions Judge, Kangra at Dharamshala by the learned Judicial Magistrate. The learned Sessions Judge assigned the Sessions case to the learned Additional Sessions Judge (II) Kangra at Dharamshala for disposal. The learned trial Court having found prima facie case against the accused, charged sheeted him under Section 302 IPC. The accused pleaded not guilty to the charge and claimed trial. 13. In order to bring home the accusation, 21 witnesses were examined by the prosecution. 14. The accused in his statement recorded under Section 313 Cr.P.C. pleaded that some of the witnesses are the relatives of the deceased who have been misguided by PW-15 Prithvi Singh to lodge a false case against him as he has some landed dispute with Prithvi Singh. He stated that the gun shot was fired accidentally and after the incident he hired a Tractor and carried the injured Darshan Singh therein to the hospital. In support of his case, the accused examined DW-1 Suresh Kumar, Pharmacist posted in District Jail Dispensary, Dharamshala during the relevant time and his sister DW-2 Smt. Sudershna Devi. The trial Court found the evidence of PW-1 Dr. Mohan Singh, PW-2 Smt. Divya Devi wife of the deceased, PW-4 Kirpal Singh brother of the deceased, PW-13 Dr. D.P. Swami, PW-12 Ajit Pal, Pardhan of the Gram Panchayat, PW-16 Naginder Singh cousin brother of the deceased, PW-19 H.C. Vishesh Kumar, PW-20 ASI Negi Ram and (PW-21) ASI Varinder Kumar the Investigating Officer cogent and reliable. Placing reliance on their evidence and documentary evidence coming on the record, the learned trial Court found the accused guilty for the commission of the offence punishable under Section 302 IPC. He, therefore, vide judgment and order dated 1.10.2002 convicted and sentenced the accused as aforesaid. 15. Feeling aggrieved by conviction and sentence imposed upon him, the accused has preferred this appeal from jail. 16. This Court has appointed Shri M.S. Guleria, Advocate to defend the accused as Legal Aid Counsel. 17. In support of the appeal, the learned Counsel for the accused submitted that the trial Court has not analysed and appreciated the evidence in proper perspective. 16. This Court has appointed Shri M.S. Guleria, Advocate to defend the accused as Legal Aid Counsel. 17. In support of the appeal, the learned Counsel for the accused submitted that the trial Court has not analysed and appreciated the evidence in proper perspective. The Investigating Officer has not recorded the statement of the closed relatives of the deceased who were present in the hospital about the truthfulness of the case but he had chosen PW-12 the Pardhan of the Panchayat to make statement under Section 154 Cr.P.C. which would go to show that the investigation was not fair. He next contended that from the evidence of the prosecution witnesses it becomes clear that the relation of the accused with his wife PW-5 Smt. Sushila Devi were cordial and there was no occasion for the deceased to have gone to the house of the accused to patch up their alleged differences and the defence of the accused that the bullet of the gun hit the deceased is more plausible and acceptable than the cooked up story of the prosecution against the accused. Finally, he submitted that there was no intention on the part of the accused to fire gun shot at the person of his brother-in-law and the case, if found having been proved against him would fall under Section 304 Part II IPC. 18. In response, learned Additional Advocate General for the State supported the judgment of the learned trial Court and further submitted that in view of the analysis of the evidence made by learned trial Court and the nature of the injuries on the vital part of the body of the deceased would prove that the accused had the intention to commit the murder of the deceased, no interference is called for and the accused has been rightly convicted by the learned trial Court for offence punishable under Section 302 IPC. 19. In order to appreciate the rival contentions of learned Counsel for the parties, we have reappraised and scrutinized the evidence appearing on the record. 20. PW-2 Smt. Divya Devi wife of deceased Darshan Singh stated that before his death, her husband was serving in the CISF. PW-5 Smt. Sushila Devi is her sister-in-law i.e. sister of her late husband and she is the wife of the accused. The accused is retired Army official. 20. PW-2 Smt. Divya Devi wife of deceased Darshan Singh stated that before his death, her husband was serving in the CISF. PW-5 Smt. Sushila Devi is her sister-in-law i.e. sister of her late husband and she is the wife of the accused. The accused is retired Army official. On 21.2.2001 she along with her husband went to the house of the accused on the request of PW-5 and stayed there for one night. On 22.2.2001 PW-4 Kirpal Singh elder brother and PW-16 Naginder Singh cousin brother of the deceased were called at the house of the accused. DW-2 Smt. Sudershna Devi sister of the accused was also present in the house of the accused. When her husband Darshan Singh was standing in the courtyard of the accused, the accused fired a gun shot at him from a distance of about 5 feet. This witness has resiled from her earlier statement and was declared hostile. In cross-examination conducted by the learned Public Prosecutor, she has admitted that the accused without any rhyam or reason fired a bullet shot from his gun hitting the chest of her husband. She admitted that after inflicting the bullet injury on the person of her husband, the accused carrying the gun fled from the scene of occurrence towards the jungle side. She with the help of her other relatives took her husband to the hospital where he succumbed to the injuries at about 6.10 p.m. on 22.2.2001. She deposed that she could not disclose to PW1 Doctor in Community Health Centre, Shahpur that the accused had inflicted bullet injury with his gun at the chest of her husband as she was perplexed. A suggestion of the defence that the accused was going to jungle for hunting and his wife PW-5 started snatching the gun from his hand and in that process the bullet was fired accidentally hitting her husband was categorically denied by her. She also denied the suggestion of the defence that the gun shot was not fired in her presence as she at that time was inside the kitchen of the house of the accused. Further suggestion of the defence that the accused lifted her husband from the ground and took him to hospital was also denied by her. She again, reaffirmed that the accused after firing the bullet from the gun ran away from the scene of occurrence towards jungle side. 21. Further suggestion of the defence that the accused lifted her husband from the ground and took him to hospital was also denied by her. She again, reaffirmed that the accused after firing the bullet from the gun ran away from the scene of occurrence towards jungle side. 21. PW-4 brother of the deceased has categorically stated that on 22.2.2001 he alongwith his deceased brother, sister-in-law and PW-16 had gone to the house of the accused for settlement of some minor family dispute of the accused with his wife PW-5. The accused suddenly fired a bullet from his gun hitting at the chest of the deceased. He along with other relatives brought the deceased to the hospital on a Tractor. After firing the bullet shot the accused fled towards the jungle. He chased the accused upto a considerable distance but he could not be apprehended. DW-2 sister of the accused was also present at the scene of the occurrence when gun shot was fired at the person of the deceased by the accused. He denied the suggestion of the defence that the accused was going to the jungle armed with gun for hunting and his wife PW-5 had tried to stop him and she tried to snatch the gun from his hand and in that process the gun went off accidentally. 22. PW-5 wife of the accused and sister of the deceased has admitted that her brother Darshan Singh and his wife PW-2 came to her house on the date of the incident. She turned hostile to the prosecution. She admitted in the cross-examination that two FDRs of Rs. 10,000/- each and one FDR of Rs. 30,000/- were lying in deposit in the Bank in her joint account with the accused. Her second brother PW-4 was married in the year 1996. A sum of Rs. 14,000/- on the maturity of the FDR of Rs. 10,000/- was encashed by her husband and the said amount was spent on the marriage of PW-4. She has admitted the suggestion of the prosecution that on 22.2.2001 her elder brother PW-4 Kirpal Singh and maternal uncle’s son PW-16 were also present at her house to settle a minor family dispute between her and the accused. She admitted that after firing the gun shot the accused fled towards the jungle. She has admitted the suggestion of the prosecution that on 22.2.2001 her elder brother PW-4 Kirpal Singh and maternal uncle’s son PW-16 were also present at her house to settle a minor family dispute between her and the accused. She admitted that after firing the gun shot the accused fled towards the jungle. She also deposed that she did not make any attempt to snatch the gun from the hand of her husband. 23. PW-6 Tarlok Sharma at the relevant time was the Manager of Punjab National Bank, Shahpur Branch. It is his evidence that on 2.3.1996 PW-5 wife of the accused withdrew an amount of Rs. 14,000/- on maturity of one FDR of Rs. 10,000/-. The FDR was in the joint account of PW-5 and the accused. About six months before the date of recording of his evidence by the Court i.e. 19.10.2001, the accused came to him and enquired as to how a sum of Rs. 14,000/- was allowed to be withdrawn from his joint account with his wife. He told the accused that since his wife was joint holder of the account and after maturity of the FDR the matured value of the FD was credited to the joint account, which was duly operated by his wife. He placed on record a photo stat copy of joint account of accused and his wife as (Ext. PW-6/A). 24. PW-10 Abhishek is the owner of Tractor Bearing No. HP-36-3442. As per his deposition, on the day of occurrence, the accused came to him alongwith some other persons and requested him to take injured Darshan Singh to hospital. He was declared hostile. In the cross-examination conducted by the learned Public Prosecutor, he states that there were large number of persons coming in a hord towards the tractor when injured Darshan Singh was to be taken to the hospital. 25. PW-12 Ajit Pal the Pardhan of Gram Panchayat, Dhob has deposed that on 22.2.2001 he received a telephonic message at Shahpur Bazar that a murder had taken place in the village and he should reach at the hospital. On reaching the CHC Shahpur, he noticed that Darshan Singh sustained bullet injury on his chest. His statement under Section 154 Cr.P.C. (Ext.PW-12/A) was recorded by the police in the hospital which was duly signed by him. He was associated in the investigation by the police. On reaching the CHC Shahpur, he noticed that Darshan Singh sustained bullet injury on his chest. His statement under Section 154 Cr.P.C. (Ext.PW-12/A) was recorded by the police in the hospital which was duly signed by him. He was associated in the investigation by the police. This witness was also declared hostile, but in the cross-examination conducted by the learned Public Prosecutor he has admitted the preparation of the seizure memos by the Investigating Officer on the spot and his signature appended thereon. 26. In the presence of PW-14 Sanjay Kumar Up-Pardhan of the Gram Panchayat, the police took into possession some pellets from inside the box of the accused from his house. A gun licence was also handed over to the police by the accused. From the house of the accused, the police took into possession three wads of papers and one wad of plastic in the presence of PW-15 Prithi Singh. The recovered articles were taken into possession vide recovery memo (Ext. PW-14/A) duly signed by the PW-15. It has come in the cross-examination of the witness conducted by the defence that the accused is his nephew. He has denied the suggestion of the defence that he is making false statement against the accused as there was some landed dispute between them. 27. PW-16 has turned hostile to the prosecution, to the extent of giving the date of the incident. As per his version it was on 13.2.2001 when he along with PW-2 and the deceased had gone to the house of the accused when the accused fired a gun shot at the chest of the deceased. A suggestion of the learned Public Prosecutor that the incident had taken place on 22.2.2001 and not on 13.2.2001 as deposed by him, was denied by him. He admitted the suggestion of the learned Public Prosecutor that after firing the gun shot the accused fled towards the jungle. In the cross-examination of the defence, he admitted that the accused had fired the gun shot at the chest of the deceased in his presence when the deceased was at a distance of about three feet from the accused. 28. PW-19 H.C. Vishesh Kumar recorded the FIR (Ext. PW-19/C) on the basis of the ruka. In the cross-examination of the defence, he admitted that the accused had fired the gun shot at the chest of the deceased in his presence when the deceased was at a distance of about three feet from the accused. 28. PW-19 H.C. Vishesh Kumar recorded the FIR (Ext. PW-19/C) on the basis of the ruka. In his presence the accused came to Police Station at about 8.05 p.m. on the day of occurrence and disclosed to PW-20 ASI Negi Ram that he had fired a gun shot at the person of his brother-in-law Darshan Singh. The information was recorded in Rapat Rojnamcha (Ext. PW-19/B). The gun (Ext.P-7) was taken into possession and on its visual inspection one spent cartridge was found in its right barrel. Both the heads of the barrel was closed with a piece of cloth and was sealed with seal impression ‘T’. All the articles recovered by the Investigating Officer from the spot and seven empty cartridges and four live cartridges were deposited with him. He kept all the articles in safe custody. 29. PW-20 ASI Negi Ram has corroborated the version of PW-19 in its entirety. A suggestion of the defence that gun Ext.P-7 was produced by the accused to PW-21 the Investigating Officer in the hospital is categorically denied by him. 30. PW-21 the Investigating Officer has given the details of the investigation conducted by him. He denied the suggestion of the defence that the accused met him in the hospital accompanying the deceased and told him that the gun went off accidentally. He also denied the suggestion that the accused brought the gun from his house and produced it before him. 31. The medical evidence of PW-1 and PW-13 has corroborated the evidence of the other witnesses that the deceased died due to bullet injury sustained by him on his chest. The accused has admitted the presence of the deceased and his wife PW-2 in his house on 21.2.2001 and 22.2.2001 in answer to question No.2 of statement recorded under Sections 313 Cr.P.C. In answer to question No.4 his reply was that the gun was fired accidentally and he did not know whether it was he or his wife who pressed the trigger of the gun. The accused pleaded twin defences namely, (i) that he was mentally unsound when the incident had taken place and (ii) that the gun was fired accidentally when his wife tried to snatch it from his hand. 32. In support of his first defence plea the accused has examined DW-1 Sh. Suresh Kumar who at the relevant time was posted as Pharmacist in District Jail Dispensary, Dharamshala when the accused was remanded to judicial custody on 26.2.2001. The accused was medically examined by Doctor in jail with whom DW-1 was working as Pharmacist. He was treated for psychiatric disorder in District Jail Hospital. He has admitted in the cross-examination that he did not intimate the Court about the mental disorder of the accused but he intimated the family members of the accused who used to visit him in jail. He also admitted that because of shock after committing the crime, the accused might be suffering from mental disorder. As per his version during the stay of the accused in jail, he never misbehaved with any person. The plea of the accused that he was not mentally sound is not corroborated by any evidence on record. The accused has not pleaded this defence in his statement under Section 313 Cr.P.C., nor his wife PW-5 has stated so in her deposition before the Court. This plea of the accused appears to be after- thought and cannot be accepted. He was found mentally sound by the family members, relatives and other village people before the commission of the offence. The prosecution has established on record by leading cogent, reliable and acceptable evidence as discussed above that the accused had fired bullet shot from his gun which caused blood injury on the chest of the deceased and after committing the crime the accused fled from the scene of the occurrence towards jungle side and appeared before PW-20 in Police Station, armed with the gun used by him in the crime. He disclosed to PWs. 19 and 20 that he fired bullet from his gun resulting the death of his brother-in-law namely Darshan Singh. 33. DW-2 Smt. Sudershna Devi sister of the accused has admitted that in the month of February 2001, the deceased, his wife and their son came to the house of the accused. The relations of the accused with his wife was cordial and she never saw the accused quarreling with his wife. 33. DW-2 Smt. Sudershna Devi sister of the accused has admitted that in the month of February 2001, the deceased, his wife and their son came to the house of the accused. The relations of the accused with his wife was cordial and she never saw the accused quarreling with his wife. She stated that on 22.2.2001 the accused brought fodder for his cattle from the jungle. She along with the accused, his wife PW-5 and their children were in the house. The accused told his wife that he was going to jungle for haunting. He brought his gun from the room of his house. His wife requested him not to go to jungle as he was already tired. His wife tried to snatch the gun from the hand of the accused but in that process the gun went off and as a result thereof one bullet injured the chest of the deceased who was coming from the opposite direction. She has tried to support the version of the accused that it was he who arranged the tractor and took the deceased to the hospital in the said tractor. She has admitted in the cross-examination that the accused is her sole brother and on 22.8.2002 when her statement was recorded in the Court, it was Rakhi day and she tied the Rakhi on the wrist of the accused outside the Court premises. The evidence of this witness that the bullet of the gun accidentally hit the deceased stands fully falsified from the evidence of PW-5 Smt. Sushila Devi wife of the accused. As noticed above PW-5 the wife of the accused has categorically admitted that she did not attempt to snatch the gun from the hands of her husband on the day of incident. She clearly stated that after firing the gun shot at the chest of the deceased, the accused ran towards jungle side. 34. In the facts and circumstances of the case, the evidence of the defence witnesses is not reliable and acceptable. The evidence of the prosecution witnesses is more reliable, believable and trustworthy than the defence plea of the accused. 35. Now the question falls for our consideration is whether the injury found on the body of the deceased was intended to be inflicted by the accused to bring the case within Clause III of Section 300 IPC. The evidence of the prosecution witnesses is more reliable, believable and trustworthy than the defence plea of the accused. 35. Now the question falls for our consideration is whether the injury found on the body of the deceased was intended to be inflicted by the accused to bring the case within Clause III of Section 300 IPC. We find it difficult to hold in the circumstances herein set out that such was the intention of the accused. 36. In our opinion, having regard to the totality of circumstances, viz. there was only one injury, there was no premeditation, and that the death occurred nearly after a gap of 1 to 4 hours, we can only say that the accused must be attributed the knowledge that he was likely to cause an injury which is likely to cause death. Under these circumstances, in our opinion, the accused is shown to have committed an offence under Section 304, Part II of the Indian Penal Code and he is accordingly convicted for the same and sentenced to suffer rigorous imprisonment for seven years. 37. Accordingly this appeal is partly allowed and the conviction of the accused is altered from Section 302 IPC to Section 304, Part II IPC and the sentence of life imprisonment is reduced to rigorous imprisonment for seven years. The order of fine imposed upon the accused and in default of payment of fine as well as the order of payment of the fine, if realized to the widow of the deceased as compensation shall remain intact. The case property shall be dealt with as per the direction of the learned trial Court. 38. We place on record our appreciation to the valuable assistance rendered to us in deciding this appeal by Mr. M.S. Guleria, Amicus Curiae. Appeal partly allowed. ****************