Judgment RADHE SHYAM SHARMA, J. (1) THIS appeal is directed against the judgment dated 16-11-1995 passed by the Additional Sessions Judge, Sakti, District Bilaspur, Camp Janjgir in Session Trial No. 338/93. By the impugned judgment, appellant Ramsharan has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. (2) Case of the prosecution, in brief, is as under: Father of the appellant purchased a piece of land from Vishali Kewant, grandfather of the deceased Jethuram on 24-2-1949 and took possession of the land. Mutation was not done in favour of the purchaser. When the appellant's father had left the village, the deceased started cultivating the land. After few years, when the appellant came back and tried to get back possession of the land, the deceased did not allow him to take the possession. On this account, a quarrel took place between them on 6-8-1993. On 21-8-1993, at about 11 p.m., when the deceased was. coming back from his duty, at that time, the appellant along with his brother and cousin (sister's son) assaulted the deceased with a lathi. When the deceased fell down, all the three persons ran away. Upasram (PW-1) and Duvasram (PW-2) saw the occurrence and having frightened, ran away. Before his death, the deceased had narrated his wife Tirithbai (PW-3) and his brother Ghasiyaram (PW-4) about the assault given to him by the appellant with the lathi. Thereafter, the deceased was taken to Police Station Akaltara. The deceased himself lodged First Information Report (Ex. P-18). The deceased was sent to the District Hospital, Bilaspur, where he succumbed to the injuries. Information of death of the deceased was sent to Police Station Kotwali, Bilaspur, where Merg Intimation (Ex. P-19) was recorded. The police rushed the hospital, gave notice to the Panchas and prepared inquest (Ex. P-20) on the body of the deceased. Dead body of the deceased was sent for post-mortem examination. The post-mortem examination was conducted by Dr. Vijay Kumar Verma (PW- 15), who prepared a report vide Ex. P-21. He noticed stitched wound 2" in length traversely placed on head, 8" above to the root of nose and five other injuries on the body of the deceased. He opined that cause of death was coma, on account of the injuries on brain and skull. In further investigation, memorandum statement of the appellant was recorded on 23-8-1993 vide Ex. P-21. He noticed stitched wound 2" in length traversely placed on head, 8" above to the root of nose and five other injuries on the body of the deceased. He opined that cause of death was coma, on account of the injuries on brain and skull. In further investigation, memorandum statement of the appellant was recorded on 23-8-1993 vide Ex. P-5 and at his instance a bamboo was recovered vide Ex. P-6. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Janjgir, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the Additional Sessions Judge, Sakti, Camp Janjgir, who conducted the trial and convicted and sentenced the appellant as aforementioned. Shri Abhay Tiwari, learned counsel for the appellant argued that the finding of guilt recorded on the basis of oral dying declaration is unreasonable and not reliable. It was not proved beyond reasonable doubt. He further argued that the deceased was unconscious and he was not in a position to lodge First Information Report or narrate about the occurrence to anyone. Therefore, the evidence of oral dying declaration is not reliable. Tirithbai (PW-3) and Ghasiyaram (PW-4) are interested witnesses, hence, their testimonies are not reliable. The finding recorded by the learned Additional Sessions Judge for convicting the appellant under Section 302 of the Indian Penal Code is unsustainable. Alternatively, learned counsel also argued that the act of the appellant would not be punishable under Section 302 of the Indian Penal Code and even after admitting the entire case, the appellant would be liable for punishment for causing grievous hurt only. He placed reliance on Radhey Shyam v. State of U. P., 1998 (8) Supreme 118 : (AIR 1999 SC 1461). (3) PER contra, Shri Ashish Shukla, learned Government Advocate for the State/respondent, supporting the impugned judgment, argued that the prosecution witnesses are natural witnesses. Their testimonies are wholly reliable. The oral dying declaration made by the deceased before his wife and brother is reliable. He also argued that the First Information Report (Ex. P-18) can also be treated as dying declaration and can be admitted as evidence for conviction of the appellant. (4) We have heard learned counsel for the parties at length and perused the impugned judgment as also the evidence available on record. He also argued that the First Information Report (Ex. P-18) can also be treated as dying declaration and can be admitted as evidence for conviction of the appellant. (4) We have heard learned counsel for the parties at length and perused the impugned judgment as also the evidence available on record. Conviction of the appellant is based on the oral dying declaration made by the deceased before his wife Tirithbai (PW-3) and brother Ghasiyaram (PW-4). According to the prosecution, Upasram (PW-1) and Duvasram (PW-2) were examined as eyewitnesses, but they turned hostile and did not support the prosecution case, therefore, the case of the prosecution is totally based on the oral dying declaration. So far as First Information Report is concerned, whether it is admissible in evidence as dying declaration under Section 32(1) of the Evidence Act, the Hon'ble Supreme Court held in Munnu Raja and another v. The State of Madhya Pradesh, AIR 1976 SC 2199 that: "5................After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death." (5) IN the present case, the First Information Report (Ex. P-18) was lodged by the deceased himself, in which, it was reported by him that at about 11 p.m., when he, along with Upas Gond and Duvas Gond reached between the Villages Butarabhava and Karumahu, Ramsharan, son of Ramvagas Lohar, resident of Karumahu along with his brother, whose name was not known to him but he was acquainted with him and knew that he was resident of Bhatapara, cousin (sister's son) and brother-in-law (sister's husband), whose names were not known to him but he was acquainted with them and knew that they were father and son and residents of Bhatarapa, Raipur, all these four persons, armed with lathi, stopped him suddenly, surrounded him and assaulted him with the lathi in their hands. He sustained injuries on his head, left hand, back etc. Blood was oozing out of the head. He fell down. Thereafter, they had run away from the spot. Upas Gond and Duvas Gond, who were with him, having seen the occurrence, also ran away from the spot. He sustained injuries on his head, left hand, back etc. Blood was oozing out of the head. He fell down. Thereafter, they had run away from the spot. Upas Gond and Duvas Gond, who were with him, having seen the occurrence, also ran away from the spot. (6) TIRITHBAI (PW-3) has stated that her husband (the deceased) had lodged the First Information Report at Police Station Akaltara. Ghasiyaram (PW-4) has also stated that Jethuram (the deceased) had lodged the First Information Report. Gopal Pandey, Assistant Sub-Inspector (PW-11) has stated in paragraph 1 that Jethuram (the deceased) had lodged the First Information Report, which he had recorded vide Ex. P-18. From the evidence of these witnesses, it is clear that the First Information Report (Ex. P-18) was lodged by the deceased himself. The First Information Report specifically shows the cause of death of the deceased and after lodging of the Report, the deceased had succumbed to the injuries. Therefore, the First Information Report (Ex. P-18) can be treated as dying declaration and can be admitted to evidence under Section 32(1) of the Evidence Act. In K. Ramachandra Reddy and another v. The Public Prosecutor, AIR 1976 SC 1994, the Hon'ble Supreme Court has held thus : "6.................. The dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth- could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.............." (7) Learned counsel appearing for the appellant has argued that the deceased had sustained head injuries and he was not in a position to make any statement. We have carefully perused the First Information Report (Ex. P-18) and the oral dying declaration made before Tirithbai (PW-3) and Ghasiyaram (PW-4) and found that the deceased was conscious till the lodging of the First Information Report. Gopal Pandey, Assistant Sub-Inspector (PW-11) has stated that Jethuram (the deceased) had lodged the First Information Report and he had recorded the First Information Report. He has further stated that he had also recorded the statement of Jethuram under Section 161 of the Code of Criminal Procedure. In cross-examination, in paragraph 5, he has specifically stated that the deceased was taken to the Police Station in a bullock-cart and at that time, the deceased was conscious. Tirithbai (PW-3) has stated in paragraph 1 that her husband (the deceased) had told her after the occurrence that the appellant, his brother and cousin (sister's son) had committed Marpeet with her husband. The deceased had also told her that he was accompanied by Upasram and Duvasram. The deceased had sustained head injuries and blood was oozing out. She has stated that her husband had told her these things at the door of Chaitram and had also told her on the way while he was being taken to the Police Station. She has further stated that she had also gone to the Police Station along with her husband and her husband has lodged the report in the Police Station. Ghasiyaram (PW-4) has stated in paragraph 1 that deceased Jethuram was his brother. The deceased had told him at the house of Chaitram that the appellant, his brother, his cousin (sister's son) and an other person had committed Marpeet with him. The deceased had also told him that he was accompanied by Upasram and Duvasram. Ghasiyaram (PW-4) has stated in paragraph 1 that deceased Jethuram was his brother. The deceased had told him at the house of Chaitram that the appellant, his brother, his cousin (sister's son) and an other person had committed Marpeet with him. The deceased had also told him that he was accompanied by Upasram and Duvasram. In cross-examination, in paragraph 4, he has stated that the deceased was talking to him while he was being taken from the house of Chaitram to the Bilaspur Hospital. He had given bread to the deceased. 1-11/2 hours were consumed in lodging the report in the Police Station. He has further stated that he was told by the deceased at the house of Chaitram that he was accompanied by Upasram and Duvasram. This witness has further stated that he did not talk with Upasram and Duvasram at the house of Chaitram nor thereafter. Sammat (PW-9) was declared hostile, but after cross- examination, in paragraph 2, he has stated that the deceased had told him that the appellant, his brother, brother-in-law (sister's husband) and cousin (sister's son) had committed Marpeet with him with lathi and Duvasram and Upasram, having frightened, had run away. Since, Sammat (PW-9) was declared hostile, but the part of his statement, which corroborates the prosecution story, can be admitted in evidence. It is well settled that evidence of a prosecution witness cannot be rejected in to merely because the prosecution chose to treat him as hostile and cross- examine him. The evidence of such witness cannot be treated as effected or wash of the record altogether, but the same can be accepted to the extent his version is found to be dependable. Therefore, the part of the statement of Sammat (PW-9), which corroborates the statements of Tirithbai (PW-3) and Ghasiyaram (PW-4), is admissible in evidence. (8) IN Munnu Raja's case (supra), the Hon'ble Supreme Court has held thus : "9...............The statement, Ex. P-14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an Investigating Officer. P-14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an Investigating Officer. The Station House Officer who recorded the statement did not possess the capacity of an Investigating Officer at the time when he recorded the statement................" In Meharban Singh and others v. State of Madhya Pradesh, AIR 2002 SC 299 : (2002 Cri LJ 586), the Hon'ble Supreme Court has held thus : "7. It is important to note that the witnesses not only reached the place of incident but also took steps to take the deceased in a bullock cart to the nearby hospital and this shows that deceased Halkiya must have been alive at that time. While the injured was being taken in the bullock cart, on the way he died and thereafter the dead body was directly taken to the Police Station. There, the First Information Report was lodged and in the FIR, it is mentioned that dead body of Halkiya was in the Police Station. The evidence of PW1 to PW3, coupled with the medical evidence and other surrounding circumstances convincingly proved that the dying declaration given by the deceased must have been true and the Sessions Court as well as the High Court was very careful in accepting this dying declaration and wherever there was any doubt as to the involvement of some of the accused, the Court granted the benefit thereof and acquitted those accused. The names of the appellants were disclosed by the deceased to three witnesses who gave their evidence before the Court and the two Courts accepted that evidence and did not find any infirmity or miscarriage of justice in this case. The appeal is without any merits and is dismissed accordingly." (9) IN Vishram and others v. State of Madhya Pradesh, AIR 1993 SC 250 : (1993 Cri LJ 304), the Hon'ble Supreme Court has held thus : "5.................. P. W. 1 in the first information report itself has mentioned about the earlier dying declaration and has also given the necessary details. Nothing significant has been elicited in his cross-examination. P. W. 1 in the first information report itself has mentioned about the earlier dying declaration and has also given the necessary details. Nothing significant has been elicited in his cross-examination. Likewise, P. W. 5 deposed that she also reached the place of occurrence and found Chandra Shekhar lying unconscious and that her husband Kamal Kishore was conscious and on being asked, he told her that the six appellants attached him and beat him. Thereafter Kamal Kishore was taken to the hospital......." (10) IN Prakash and another v. State of Madhya Pradesh, AIR 1993 SC 65 : (1992 AIR SCW 2582), the Hon'ble Supreme Court has held thus : "11..............IN the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. IN the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. From the above, we find that the evidence of oral dying declaration led by the prosecution in the instant case is reliable, admissible in evidence and can be based for conviction of the appellant. The prosecution has come-up with a definite case that the offence was committed by the appellant and the prosecution has proved its case beyond all reasonable doubts. (11) As far as motive is concerned, it is not always necessary for the prosecution to establish definite motive for commission of crime to secure conviction of the accused. It would always be relatable to the facts and circumstances of a given case. Absence of motive does not essentially result in acquittal of accused if he is otherwise found guilty by cogent and reliable evidence. However, in the instant case, there existed some motive for the appellant to commit murder of the deceased. The prosecution has alleged that a quarrel had taken place between the appellant and the deceased oh account of the land dispute. However, in the instant case, there existed some motive for the appellant to commit murder of the deceased. The prosecution has alleged that a quarrel had taken place between the appellant and the deceased oh account of the land dispute. (12) TIRITHBAI (PW-3) has stated in paragraph 1 that a dispute regarding land was going on between the appellant and the deceased since last two years. Ghasiyaram (PW-4) has stated in paragraph 1 that the appellant had quarreled with the deceased and on account of report of the appellant, the deceased and his brother Ghasiyaram (PW- 4) were sent to jail. From the evidence of the above witnesses, it becomes quite evident that the appellant was having malice against the deceased and a quarrel had taken place between them. (13) We have carefully examined the evidence of Tirithbai (PW-3), Ghasiyaram (PW-4), Sammat (PW-9) and Gopal Pandey, Assistant Sub-Inspector (PW-11). From the evidence of these witnesses, it is crystal clear that it was none other than the appellant who assaulted the deceased with lathi and cause of death of the deceased was coma, which took place on account of the injuries on his brain and skull. Therefore, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the death of the deceased. (14) Now, we shall examine the matter in light of the provisions of Section 302 vis-avis Section 304 of the Indian Penal Code. The determinative factor in Section 300 of the Indian Penal Code is the intentional injury, which must be sufficient to cause death in the ordinary course of nature. It is immaterial whether the offender had knowledge that an act of that kind will be likely to cause death. The offender's subjective knowledge of the consequence is irrelevant. The result of the intentionally caused injury must be viewed objectively. To find out whether the offender had intention to cause such bodily injury, which in the ordinary course of nature was sufficient to cause death, the divorce factors need to be kept in mind such as the force with which the blow has been dealt with, the type of weapon used, the vital organ or the particular spot of the body targeted, the nature of the injury caused, the origin and genesis of the crime and the circumstances attended upon the death. (15) There was a land dispute between the appellant and the deceased. The appellant had a strong feeling of annoyance against the deceased due to the land dispute. A quarrel had taken place between them on 6-8-1993, i.e., 15 days prior to the occurrence. The appellant assaulted the deceased and gave lathi blow on his head. Near-about six injuries were found on the body of the deceased. The injuries, which deceased Jethuram suffered, clearly shows that lathi was used by the appellant with a considerable force and injuries were caused on the vital parts of the body. (16) The nature of weapon used by the appellant, the manner in which he assaulted the deceased, severity of the blow he dealt against the deceased and the part of the body which he selected for giving such blow would show that he had an intention to commit murder of the deceased. We are of the considered opinion that in the above facts and circumstances, the act of the appellant would not be falling under any exception to Section 300 of the Indian Penal Code and the present cannot be said to be culpable homicide not amounting to murder. For the foregoing reasons, we do not find any substance in the appeal, which deserves to be and is accordingly dismissed. Appeal dismissed.