JUDGMENT R.B. Misra, Judge The present criminal appeal has come up for consideration after the leave to appeal has been granted under Section 378(3) of the Code of Criminal Procedure against the judgment dated 30.12.2006 passed in Sessions case No. 50-K/2005 passed by learned Additional Sessions Judge, Kangra at Dharamshala, acquitting the accused/respondent for the offence under Section 452 and 302 of the Indian Penal Code in reference to FIR No. 53/05 dated 16.2.2005. 2. The prosecution case, in brief, is that the complainant Roshan Lal filed a complaint under Section 154 of the Code of Criminal Procedure on 16.2.2005 at 5:00 P.M., stating that he has five children, including four daughters and one son and is working as labourer. On 16.2.2005 at about 3:45 P.M. his son Lucky Kumar (PW-7 came to him, while he was working and informed him that his mother was killed by Rajesh Kumar. After coming to home, Roshan Lal (PW-1) noticed that his wife (Gaytri Devi) was lying on the cot having injures on her head. She was brought to Zonal Hospital, Dharamshala in unconscious state, where his statement Ex. PW-1/A was recorded under Section 154 of the Code of Criminal Procedure. She regained consciousness at PGI after three days and she told PW-1 that she was given beatings by accused Rajesh Kumar by Axe. The victim was medically examined at about 5.00 P.M. The FIR in that reference was registered on the same day at about 6:30 P.M., however, Gaytri Devi died due to the injuries after one month eight days. Post mortem of the deceased/Gaytri Devi was conducted and after investigation accused Rajesh Kumar was charged for the offences punishable under Sections 452 and 302 of the Indian Penal Code. 3. In order to prove its case, the prosecution has examined as many as eighteen prosecution witnesses, whereas the accused/respondent, denied the prosecution case. 4. PW-1 (Roshan Lal), husband of the victim/deceased has supported the prosecution case. However, in his cross-examination, he has stated that he got statement recorded with the police indicating that his son Lucky Kumar (PW-7) told him that accused Rajesh Kumar had inflicted injuries on the victim, however, confronted with Ex. PW-1/A, it was not so recorded. PW-1 further stated in cross-examination that he remained in PGI till 22nd February, 2005 and police recorded his statement at PHI Chandigarh. PW-1/A, it was not so recorded. PW-1 further stated in cross-examination that he remained in PGI till 22nd February, 2005 and police recorded his statement at PHI Chandigarh. Statement of PW-1 was recorded again at home and the victim was again taken to PGI on 21st March, 2005. PW-1, however, denied that the police did not record his separate statement after 16.2.2005 and has also denied the suggestion that the victim had not told him that she was given beatings by the accused. PW-1 has also denied the suggestion that PW-7 did not disclose the name of accused Rajesh Kumar. PW-1 has also stated in his cross-examination that Amar Singh, the father of accused is his real brother. 5. PW-2/(Swarup Kumar) has stated that he was told that Rajesh Kumar had beaten the victim, however, he neither saw the accused Rajesh Kumar in the Village nor had seen him running from there, when PW-2 (Swarup Kumar) entered the house of Gaytri Devi. PW-2 stated that police had already reached there and at that time the injured had not been murmuring anything. PW-2, however, denied the suggestion that Smt. Kanta Devi (PW-8) and Lucky (PW-7) had suggested to apprehend accused Rajesh Kumar, as he was running from the spot. PW-2 has also stated in cross-examination that Smt. Kanta Devi (PW-8) has also apprized PW-2 that Rajesh Kumar had given blow of axe to victim/Gaytri Devi. PW-2 has stated in cross-examination that victim was unconscious when he reached the place of victim and was not in a position to talk and PW-2 was also unaware as to who has raised rumor/noise that accused Rajesh Kumar had beaten the victim. 6. PW-3/(Sanjay Kumar), deposed that while present in his shop at about 4.00 P.M. on 16.2.2005, had heard that some lady had been beaten, as such, PW-3 had taken the victim to hospital and PW-3 was told by ladies that Rajesh Kumar had beaten the victim, however, PW-3 had not seen Rajesh Kumar Accused either on the spot or running from there towards Mastpur side. PW-3 noticed that Gaytri Devi was unconscious and was not murmuring anything. PW-3 has also denied the suggestion that he himself and PW-2 had seen accused Rajesh Kumar running towards Mastpur side on 16.2.2005. PW-3 noticed that Gaytri Devi was unconscious and was not murmuring anything. PW-3 has also denied the suggestion that he himself and PW-2 had seen accused Rajesh Kumar running towards Mastpur side on 16.2.2005. PW-3 has also denied the suggestion that when he entered the house of victim, she was murmuring that she was beaten by accused Rajesh Kumar. PW-3, however, in cross-examination has stated that he did not know the name of those ladies, who were saying that accused Rajesh Kumar had given beatings to the victim. 7. PW-4/(Mast Ram), had witnessed the recovery of blood stained bed sheet and pillow cover from the room of victim and PW-4 has also put signatures on recovery memo Ex. PW-4/A. PW-4 has also witnessed the recovery of axe. However, as per version of PW-4, axe was not having blood stains. PW-4 again stated that he was at some distance and he could not see whether there was blood stains on the axe o not. PW-4 had put his signatures on the parcel of axe Ex. P-3. PW-4 has stated in cross-examination that he went to the house of victim, police has already arrived there. PW-4 has further stated that he had seen the axe at the time of seizing and axe was shown to him at that time and there was no blood on it at that time. 8. PW-5/(Dr. Samanju Dhiman), who medically examined the victim on 16.2.2005 at about 5:00 P.M. with the history of being beaten by accused Rajesh Kumar, had noticed that type of injury can be caused from the blunt side of axe. PW-5 after observing the axe Ex. P-3 has indicated that injuries mentioned in MLC Ex. PW-5/B can be caused by blunt side of axe. PW-5 noticed the following injuries on the body of victim:- “1. There was a lacerated wound on the left periet occipital region of scalp size 7 cm X 1 cm x 1cm. The blood oozing from the wound. Tenderness was present. The patient was advised C.T scan of head. 2. There was black right eye, nasal bleeding was present. The patient was admitted in female surgical ward for further management for head injury. On going through the C.T. scan report Ex. PW-5/A. The injury No. 1 was grievous in nature caused by blunt weapon within a probable duration of 12 hours. The patient was advised C.T scan of head. 2. There was black right eye, nasal bleeding was present. The patient was admitted in female surgical ward for further management for head injury. On going through the C.T. scan report Ex. PW-5/A. The injury No. 1 was grievous in nature caused by blunt weapon within a probable duration of 12 hours. Injury No. 1 is dangerous to life and can cause death. I issued MLC Ex. PW-5/B which is in my hand and bears my signatures”. PW-5, in cross-examination has stated that he has given suggestion for the first time in the Court that injury No. 1 was dangerous to life. 9. PW-6/(Dr. D.P. Swami) conducted the post mortem of the victim and has noticed the following ante mortem injuries. “1. Stitched wound, semi circular, on left mid pariental region almost healed, 21 cm long with number 20 black silk suturss. 2. Healed scar in the mid parietal region whitish 3” x 3” (evidence of old injury more than 15 days) as shown in diagram. 3. Stitched would on the right side, front, mid lower abdomen (RIF) 6 cm. long, tranaverse with No. 7 black silk sutures. 4. Bruise reddish on removal of left side scalp skin, below the stitched would 3 ½ “ x 3” area in the left mid parietal region, as shown in diagram Craniotomy done on left side and tempor-parital region (done by surgical intervention, sharp margin, 28 cm. long.)” PW-6 has also opined that the victim died of neurogenic shock and asphyxia due to ante mortem head injury, under the circumstances of anemic condition. After perusal of FSL report Ex. P-A, PW-6 has also finally opined that the victim/deceased has died due to ante mortem head injury by blunt weapon. PW-6 has stated in cross-examination that in his final opinion the anaemic condition of the deceased was also one of the reason contributing to the death of the deceased and there was no opinion regarding the cause of death exclusively due to the head injury. PW-6 has also stated that it is correct to suggest that there is no opinion that head injury was sufficient in the ordinary course of nature to cause death. PW-6 has also stated that it is correct to suggest that there is no opinion that head injury was sufficient in the ordinary course of nature to cause death. PW-6 self-stated that the cause of death in the present case due to head injury was 80% and due to anaemia was 20% and as per the opinion of PW-6 had the case been reverse, death could have been caused immediately after the head injury. 10. PW-7/(Lucky) son of victim, in support of the prosecution case has stated that when he arrived at house at about 3:00 P.M. from school on 16.2.2005, his mother had fallen down and blood was oozing from her head. His mother/victim had asked him to call his father and had told that she had been beaten by accused Rakesh Kumar. PW-7 in cross-examination has stated that when he returned from school, at that time, there were 10-11 ladies present in his house and those ladies had told him that his mother/victim had become unconscious and they had asked him to ask his father to come. PW-7 has also stated that he had told his father that the victim was lying unconscious, when he had gone to call him. Except this, PW-7 has not told anything to his father PW-1 (Roshan Lal). PW-7 has innocently stated in his cross-examination that his father has instructed him that what to depose in the Court, however, PW-7 has also denied the suggestion that his mother was lying unconscious and she had not told anything to him on his arrival in the house on the day of occurrence. PW-7 has also accepted the suggestion that he was instructed by his father for naming Rakesh Kumar as assailant in the case. 11. PW-8/(Kanta Devi) in support of prosecution case has stated that when she entered the room of Roshan Lal, at that time victim was lying on the ground. PW-8 had noticed blood on the ground and sister-in-law of accused was also in the room at that time, cleaning the blood from the room. Mother of the accused had not done anything to the blood and there were only three ladies in the house at that time. PW-8 has also accepted the suggestion that victim was lying in the room in injured condition, but denied the suggestion that she was murmuring that she had been beaten by accused Ramesh Kumar with axe. Mother of the accused had not done anything to the blood and there were only three ladies in the house at that time. PW-8 has also accepted the suggestion that victim was lying in the room in injured condition, but denied the suggestion that she was murmuring that she had been beaten by accused Ramesh Kumar with axe. 12. PW-9/(Parkash Chand), has witnessed the recovery of axe Ex. P-3, bed sheet Ex. P-4 and pillow cover Ex. P-5. 13. PW-10/(Head Constable Rupinder Singh) has stated that telephonic information was received on 16.2.2005, which was reduced into writing by him in Rapat Roznamcha Register Ex. PW-10/A. 14. PW-11/(Bhagwan Dass), PW-12 (Bhawani Singh), PW-13 (constable Sushil Kumar), PW-14 (HC Suresh Kumar), PW-15 ( SI Prem Chand), PW-16 (SHO Sanjeev Chauhan), PW-17 (SI Shreshta) and PW-18 (Dr. Bhanu Parkash) has endavoured to support the prosecution case to the extent the role assigned to them in their official capacity. 15. PW-15/(SI Prem Chand) had investigated the case and has stated that he had recorded the statement of victim/Gaytri Devi on 4.3.2005 under Section 161 of the Code of Criminal Procedure, however, on 24.3.2005 victim had died due to injuries. Thereafter, inquest report Ex. PW-6/B and Ex. PW-15/D was prepared. PW-15 has also stated in cross-examination that the name of informer was not recorded in Rapat Ex. PW-10/A and Ex. PW-15/A as the informer did not disclose his name. PW-15 has also stated that the statement of victim could not be recorded, because the medical officer has declared her unfit to give statement and the statement of PW-1 (Roshan Lal) was also not recorded under Section 161 of the Code of Criminal Procedure, separately, despite that his statement under Section 154 of the Code of Criminal Procedure was recorded as Ex. PW-1/A. It has been stated by PW-15 in cross-examination that from the date of occurrence, till the date of victim died, there was lapse of one month and eight days, however, during such period, PW-15 did not take service of doctor for recording the statement of victim. Pw-15 has also stated that during such period, the help of Executive or Judicial Magistrate was also not taken for recording the statement of deceased, who were otherwise available at Dharamshala. As stated by PW-15 that the statement of victim does not wear her signature or her thumb impressions. 16. Pw-15 has also stated that during such period, the help of Executive or Judicial Magistrate was also not taken for recording the statement of deceased, who were otherwise available at Dharamshala. As stated by PW-15 that the statement of victim does not wear her signature or her thumb impressions. 16. It has been submitted by learned counsel for the State/appellant that the prosecution witnesses and material on record has not been appreciated properly and endeavour of prosecution to prove its case beyond reasonable doubt has been ignored. The following submissions have been made on behalf of the State. (i) PW-15 has recorded the statement of victim/deceased under Section 161 of the Code of Criminal Procedure, though un-exhibited, however, such victim under Section 161 of the Cr.P.C. may be treated as dying declaration, in view of decision of Hon’ble Supreme Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010) 12 SCC 224 . (ii) Daily diary report Ex. PW-15/A was based on the information given by unknown person, but the name of assailant/accused was mentioned. (iii) The complainant PW-1/(Roshan Lal) being the husband, in his statement under Section 154 of the Code of Criminal Procedure has named the accused as assailant. (iv) The axe Ex. P-3 was recovered from the house of assailant/accused. (v) Blood group of deceased found on the axe was relatable to the deceased, as per FSL report Ex. P-A. (vi) Victim / deceased had apprized her husband (PW-1) the name of the accused as assailant. (vii) There is nothing on record to suggest that PW-15 being an investigating officer was inimical towards the accused. (viii) PW-15, though had failed to take the help of Executive Magistrate or Judicial Magistrate for recording statement of victim/deceased during the period of one month eight days, however, such lapse could not make the prosecution case fatal, as the benefit of an act or omission of investigating agency should not go to the accused in the interest of justice, in view of the decision of Hon’ble Supreme Court in Sahadevan alias Sagadevan versus State (2003) 1 SCC 534 . (ix) The statement of victim/deceased recorded by PW-15 under Section 161 of the Code of Criminal Procedure cannot be overlooked. 17. (ix) The statement of victim/deceased recorded by PW-15 under Section 161 of the Code of Criminal Procedure cannot be overlooked. 17. It has been argued for defence/respondent/accused that occurrence took place on 16.2.2005, whereas, the investigating officer recorded the statement of victim/deceased under Section 161 of the Code of Criminal Procedure on 3.3.2005 however, the victim expired on 24.3.2005 and during such time, the investigating officer has not bothered to invite the medical expert to note the mental state of the victim or to invite the Executive Magistrate for recording the dying declaration of the victim, as such, recording of statement under Section 161 of the Code of Criminal Procedure by the police official cannot be treated as dying declaration, as the statement recorded under Section 161 of the Cr.P.C. cannot be given undue importance and could only be used for limited purpose for impeaching the credibility of a witness, in view of judgment of Hon’ble Supreme Court in Ram Swaroop and Others versus State of Rajasthan, (2004) 13 SCC 134 and to strengthen such stand, learned counsel for the accused/respondent has referred and relied upon the decision of Ram Swaroop’s judgment (supra), the relevant paragraphs 23 and 24 are extracted as below:- “23. We have also noticed that the High Court has attached undue important to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching he credibility of a witness. We find that in para 6 of the judgment, the High Court while dealing with the evidence of PW 7 has clearly treated the statement of PW 7 recorded in the course of investigation, as substantive evidence in this case. The High Court observed:- “He is consistent in his statement under Section 161 CrPC that while he along with Kishore (PW 10) were sitting in front of the house of Kishore, which is just near Shiva Temple, Ram Swaroop and his sons Ram Kalyan and Hiralal armed with lathis came and gave beating to Bhanwarlal and specifically head injury is attributed to Ram Swaroop. In the statement in court, he only attributed injuries to Hiralal and Ram Kalyan. In the statement in court, he only attributed injuries to Hiralal and Ram Kalyan. Even he is consistent on the fact that while Madan Lal and his mother came and tried to save Bhanwarlal from these persons, they were caught hold by Dakhan and Ram Kanya and Dakhan and Ram Kanya have given beating to Madan Lal and his mother.” 24. In our view the High Court ought to have considered his deposition rather than his statement recorded under Section 161 of the Code of Criminal Procedure. The inconsistency between the two versions is obvious from the fact that the prosecution had to declare the witness hostile. The approach of the High Court, therefore, is clearly erroneous.” 18. Learned counsel for the accused/respondent has also submitted that the statement of victim/deceased recorded under Section 161 of the Cr.P.C., recorded by the police official, more specifically unexhibited, cannot be treated as dying declaration and cannot be reliable, as there was no occasion to certify the mental and physical fitness and capability of the victim/deceased, at the time of taking statement of victim. In this respect, reference has been made to the observation of Hon’ble Supreme Court in Laxmi (Smt) Vs. Om Prakash and others, (2001) 6 SCC 118 . Paras 29 & 30 of Laxmi’s case (supra) are extracted herein below:- “29. A dying declaration not being a deposition in court, neither made on oath nor in the presence of the accused and 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 necessity. The weak points of a dying declaration serve to put the court on its guard while testing its reliability and impose on the court an obligation to closely scrutinize all the relevant attendant circumstances {see Tapinder Singh v. State of Punjab (1970) 2 SCC 113 =1970 SCC (Cri) 328=(1971)1 SCJ 751}. One of the important tests of the reliability of the dying declaration is a finding arrived at by the courts to satisfaction that the deceased was in a fit state of mind and capable of making 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. If 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 to 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. In Bhagwan Das v. State of Rajasthan AIR 1957 SC 589 : 1957 Cri LJ 889 the learned Sessions Judge found inter alia that it was improbable if the maker of the dying declaration was able to talk so as to make a statement. This Court while upholding the findings of the learned Sessions Judge held the dying declaration by itself insufficient for sustaining a conviction on a charge of murder. In Kake Singh v. State of M.P. 1981 Supp. SCC 25: 1981 SCC (Cri) 645: AIR 1982 SC 1021 the dying declaration was refused to be acted upon when there was no specific statement by the doctor that the deceased after being burnt was conscious or could have made a coherent statement. In Darshan Singh v. State of Punjab (1983) 2 SCC 411 : 1983 SCC (Cri) 523: AIR 1983 SC 554 this Court found that the deceased could not possibly have been in a position to make any kind of intelligible statement and therefore said that the dying declaration could not be relied on for any purpose and had to be excluded from consideration. In Mohar Singh vs. State of Punjab 1981 Supp SCC 18:1981 SCC (Cri) 638: AIR 1981 SC 1578 the dying declaration was recorded by the investigating officer. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present. 30. This Court excluded the same from consideration for failure of the investigating officer to get the dying declaration attested by the doctor who was alleged to be present in the hospital or anyone else present. 30. 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 this Court has urged the investigating officer to avail the services 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 precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer, later on relied on as dying declaration. In Munnu Raja v. State of M.P. (1976) 3 SCC 104 :1976 SCC (Cri) 376: AIR 1976 SC 2199 this Court observed: (SCC p. 108, para 11) “Investigating officer are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of an investigation ought not to be encouraged.” The dying declaration recorded by the investigating officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as the failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh v. State of Punjab (1979) 4 SCC 332 :1979 SCC (Cri) 968: AIR 1979 SC 1173 this Court has permitted dying declaration recorded by investigating officer being admitted in evidence and considered on proof “that better and more reliable methods of recording dying declaration of injured person” were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police office as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful.” 19. On the other hand learned counsel for the State has submitted that police official during course of investigation in all fairness, without any ill will and without any enmity has recorded the statement of victim under Section 161 of Cr.P.C., as such, there is no occasion to disbelieve such version of victim/deceased and in this context, learned counsel for the State has submitted that the presumption of honest behavior applies equally to police witnesses and testimony of police witness cannot always be disbelieved and conviction can be based on the testimony of police official, in view of decision of Hon’ble Supreme Court in Girja Prasad (Dead) by L.Rs. Vs. State of M.P. AIR 2007 SC 3106 . Relevant paragraph 24 of Girja Prasad (supra) is extracted as below:- “24………..It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.” 20. Learned counsel for the State has also invited our attention to the observations of Hon’ble Supreme Court in (2010) 12 SCC 224 Mukeshbhai Gopalbhai Barot vs. State of Gujarat and submitted that the statement recorded under Section 161 of Cr.P.C. can be treated as dying declaration after the death of maker. The relevant paragraphs of Mukeshbhai Gopalbhai are extracted below:- “16. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations, Exts.44 and 48 could not be taken as evidence in view of the provisions of Sections 161 and 162 CrPC when read cumulatively. These findings are, however, erroneous. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations, Exts.44 and 48 could not be taken as evidence in view of the provisions of Sections 161 and 162 CrPC when read cumulatively. These findings are, however, erroneous. Clause (1) of Section 32 of the Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under:- “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.— Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases: When it relates to cause of death.—(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.” We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Sections 161 and 162 CrPC admittedly provide for a restrictive use of the statements recorded during the course of the investigation but sub-section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under: “162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.” 17. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.” 17. A bare perusal of the aforesaid provision when read with Section 32 of the Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations, Exts.44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14-9-1993 would, in fact, be the first information report in this case.” 21. It is submitted by the learned counsel for the State that in circumstantial evidence, if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper conviction, in view of judgment of Hon’ble Supreme Court in Sahadevan alias Sagadevan (supra) and in this context, reliance has been placed on paragraph 24, which is extracted as below:- “24………. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction. (see Mani Kumar Thapa v. State of Sikkim (2002) 7 SCC 157 =2002 SCC (Cri) 1637.” 22. In respect of dying declaration, the Hon’ble Supreme Court has very clearly observed in para 26 of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur (2007) SCC 465. Para 26 of Nallapati Sivaiah is extracted herein below:- “25. The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. 26. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. 26. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. This Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition— mentally and physically—to make such statement.” 23. The dying declaration under Section 32(1) of the Evidence Act, 1972 can also be treated as reliable in absence of doctor’s certificate, if the person recording the dying declaration was satisfied that the deceased was in a fit state of mind, in view of judgment of Hon’ble Supreme Court in Sher Singh and another Vs. State of Punjab (2008) 4 SCC 265 . It is for the Court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. The relevant paragraph 16 is extracted as below:- “16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there being the doctor’s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essential a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.” 24. We have carefully gone through the record and have also made analysis the prosecution witnesses. Though in the present case, none of the prosecution witnesses have seen the accused/respondent, assaulting the victim/deceased (Gaytri Devi), however, PW-5 Dr. Samanju Dhiman has noted the injuries caused by blunt side of axe Ex. P-3 and has also stated that the injuries mentioned in MLC Ex. PW-5/B can be caused by blunt side of axe. PW-6 Dr. D.P. Swami, while conducting the post mortem has also noted injuries and has also opined that the victim/deceased has died due to ante mortem head injury by blunt weapon. PW-6 has also stated that the cause of death of the victim by hit injury was 80% and due to anaemia was 20%. PW-6 Dr. D.P. Swami, while conducting the post mortem has also noted injuries and has also opined that the victim/deceased has died due to ante mortem head injury by blunt weapon. PW-6 has also stated that the cause of death of the victim by hit injury was 80% and due to anaemia was 20%. Though PW-1 being husband of the victim/deceased had not availed the occasion of witnessing the occurrence, however, in the complaint made under Section 154 of the Code of Criminal Procedure, the name of the accused/respondent was recorded. So much so, in Ex. PW-15/A, daily diary report, the first information was given by an unknown person, wherein the name of accused/respondent was recorded as assailant. The recovery of axe Ex.P-3 from the house of accused/respondent and blood group of the deceased found on the axe, as per the FSL report Ex. PA is also an additional factor to strengthen the circumstantial evidence that the accused/respondent was the assailant. The accused/respondent being the nephew of victim, surprisingly was absent and was not of help to the victim in her trouble and vicissitude which the family of the victim had come across and the accused/respondent and his father had not helped in getting medical treatment to the victim/deceased. In the present case, both the families were not in speaking terms, however, absence of motive would not make the prosecution case fatal and any deficiency on the part of the investigating office shall also not make the prosecution case fatal. The statement of the victim recorded under Section 161 of the Code of criminal Procedure, though unexhibited, in our considered view can be treated as dying declaration, in the facts and circumstances of the present case. 25. Nothing is emanating from the record that the victim/deceased was not fit mentally and physically to make such statement voluntarily. Moreso, when the victim/deceased after regaining consciousness in the hospital has already apprised PW-1 (Roshan Lal) that the accused/respondent has assaulted her by axe. The medical evidence reveals that the injuries caused by blunt side of axe being the cause of death of victim, is corroborated by the statement of victim/deceased made under Section 161 of the Code of Criminal Procedure and the information given by the victim/deceased to PW-1. The medical evidence reveals that the injuries caused by blunt side of axe being the cause of death of victim, is corroborated by the statement of victim/deceased made under Section 161 of the Code of Criminal Procedure and the information given by the victim/deceased to PW-1. However, in the facts and circumstances, the real intention of the accused/respondent might not be to cause the death of victim by axe, otherwise sharp edged part of the axe/weapon could have been used by the accused/respondent. However, it can be noted that the inflicting of injuries of the nature which has caused the death of victim/deceased was not unknown to the accused/respondent that it is of such a nature that was likely to cause death. As such, we safely infer that the accused/respondent has inflicted injuries on the body of the victim/deceased with knowledge that such injuries were likely to cause death, but without intention to cause death. In such circumstances, the offence under Section 304 (2) of the Indian Penal Code is attracted in the present case. 26. In our considered view, the learned Additional Sessions Judge, Kangra at Dharamshala has not made proper appraisal of the prosecution witnesses and has not arrived at correct finding, therefore, the judgment and finding arrived at by the learned Additional Sessions Judge, Kangra at Dharamshala by judgment dated 30.12.2006 is set aside and we hold accused/respondent the guilty of the offence punishable under Section 304 (2) of the Indian Penal Code. The accused/respondent has since inflicted the injuries in question by making house tress pass carrying axe after preparation for hurt/assault to the victim/deceased, as such, the accused/respondent is also held liable guilty for offence punishable under Section 452 of the Indian Penal Code. Therefore, before awarding the sentence in respect of above offences under Section 304 Part-II and Section 452 of the I.P.C., the accused/respondent shall have to be given opportunity of being heard on quantum of sentence. List on 10.1.2013 for hearing the accused on quantum of sentence.