JUDGMENT : 1. This appeal has been preferred against the judgment dated 6-2-1996 passed by Second Additional Sessions Judge, Jabalpur in S.T.No. 121/93, whereby the appellant was convicted under section 304 Part I of the Indian Penal Code and sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 100/- and in default, to suffer R.I. for 1 month. 2. Prosecution case, in short, may be narrated as under - (i) At the relevant point of time, Duasiya Bai (since deceased) [hereinafter referred to as 'Duasiya'], a widow aged about 60 years, was residing in House No. 70, located in Lalit Colony, Belbag, Jabalpur. Her neighbour Shantibai, the mother of the appellant, had borrowed a sum of Rs. 400/- from her nearly two years prior to the incident in question and had not returned the amount despite repeated demands. This led to animosity between the families. (ii) The appellant, during the period of nearly 10 days preceding the incident, used to terrorize and intimidate Duasiya by kicking the main door of her house at night. Around midnight between 25th and 26th December, 1992, the appellant trespassed into the house of Duasiya, presumably to commit theft, Hearing some noise, she came out of the room and proceeded towards the courtyard to see as to what was happening and also to answer the call of nature. At this point of time only, the appellant gagged her and struck repeated blows with knife at her back and gave one on her right arm. In a severely injured condition, she opened the door and called neighbours Gourabai (PW1) and Balaram (PW2). Her screams also attracted attention of other inhabitants of the locality including Awadhesh Singh (PW8), Halkeram (PW4) and Krishnakant Pandey (PW3), who immediately rushed to her house. (iii) Duasiya was taken to Victoria Hospital, Jabalpur, where information given by her was recorded by Suresh Chand Goswami (PW9), the SHO of P. S. Belbag, as Dehati Nalishi (Ex.P-13B). Accordingly, a case under section 459 of Indian Penal Code was registered. Thereafter, on 26-12-1992, Duasiya's dying declaration (Ex.P-20) was recorded by J. L. Ahake (PW13), the Executive Magistrate. Ultimately on 29-12-1992 at about 7 a.m., Duasiya breathed her last. The case was then converted into one under section 460 of the Indian Penal Code. (iv) After inquest proceedings, the dead body was sent to Medical College Hospital, Jabalpur for post-mortem examination. Thereafter, on 26-12-1992, Duasiya's dying declaration (Ex.P-20) was recorded by J. L. Ahake (PW13), the Executive Magistrate. Ultimately on 29-12-1992 at about 7 a.m., Duasiya breathed her last. The case was then converted into one under section 460 of the Indian Penal Code. (iv) After inquest proceedings, the dead body was sent to Medical College Hospital, Jabalpur for post-mortem examination. Autopsy Surgeon Dr. D. K. Sakalle (PW11) opined that cause of Duasiya's death was toxemia leading to cardio-respiratory failure due to eugenic peritonitis as a result of injury on the back of her abdomen. (v) During investigation, the appellant was apprehended and from his possession, bloodstained white shirt and grey-coloured full pant were recovered. His finger nails were also cut and preserved for forensic examination. At his instance only, Inspector Suresh Chand Goswami (PW9) recovered the weapon of offence viz. a fish-shaped knife from the room situated in back portion of his house. 3. After due investigation, charge-sheet in respect of offences under sections 460 and 302 of the Indian Penal Code was submitted before JMFC Jabalpur, who committed the case to the Court of Session for trial. However, the appellant was charged with the offence of murder only. He abjured the guilt and pleaded false implication due to animosity. He further asserted that it was a case of mistaken identity in view of the following facts - (i) Raju is not his name and his only name is Pradeep. (ii) Name of his mother is not Shantibai but Guddan Bai. (iii) His residence was situated at a distance of 2 Km. from the place of the occurrence. 4. Upon consideration of the entire evidence on record, learned trial Judge, for the reasons recorded in the judgment, concluded that it was the appellant only, who had caused death of Duasiya. However, he was further of the view that the offending act did not fall under the definition of 'murder' but was culpable homicide not amounting to murder and punishable under section 304 Part I of the Indian Penal Code. 5. Legality and propriety of the impugned conviction have been challenged on the following grounds - (i) None of the witnesses of res gestae named in the Dehati Nalishi (Ex.P-13B) came forward to support the prosecution version regarding disclosure by Duasiya as to identity of the appellant as the person, who had caused knife injuries to her. 5. Legality and propriety of the impugned conviction have been challenged on the following grounds - (i) None of the witnesses of res gestae named in the Dehati Nalishi (Ex.P-13B) came forward to support the prosecution version regarding disclosure by Duasiya as to identity of the appellant as the person, who had caused knife injuries to her. (ii) Contents of dying declaration in the form of Dehati Nalishi scribed by SHO Suresh Chandra Goswami (PW9) and the statement (Ex.P-20) recorded by Executive Magistrate J. L. Ahake (PW13) were not sufficient to establish identity of the appellant as the assailant in view of the fact that in both these declarations, he was referred to as Raju, son of Shantibai, who was residing in the neighbourhood. (iii) The doctor certifying fitness of Duasiya to give dying declaration was not examined at the trial. 6. Learned counsel for the appellant has contended that even if the prosecution case is accepted in its entirety, at the most, the offence under section 304 Part II of the Indian Penal Code would be made out. For this, reliance has been placed on the decision of the Apex Court in Molu vs. State of Haryana, AIR 1976 SC 2499 . In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, has submitted that the conviction is fully justified. 7. Before adverting to the merits of the rival contentions in a right perspective, it would be necessary to first advert to the medical evidence on record. 8. Dr. M. M. Agrawal (PW6), who had the occasion to examine Duasiya in Victoria Hospital, proved existence of the following bleeding injuries on her person - (a) Stab injury on Right arm size 1" x ¼" x depth (b) Stab injury on mid scapular region at level of D2 - D3, size about 1" x ¼" x depth (c) Stab injury on left infra scapular region size about 1" x 1/4"x depth (d) Stab injury on back on mid line at level of L2-L3 size about 1"x ¼"x depth (e) Stab injury on left post axillary line at level of L2-L3 size 1"x ¼"x depth. In his opinion, all the aforesaid injuries were caused by hard and sharp object. According to him, he had referred the case to Medical College Hospital, Jabalpur for admission and treatment. 9. Autopsy Surgeon Dr. In his opinion, all the aforesaid injuries were caused by hard and sharp object. According to him, he had referred the case to Medical College Hospital, Jabalpur for admission and treatment. 9. Autopsy Surgeon Dr. D. K. Sakalle (PW11) described the injuries found on the body of Duasiya in the following words - (i) Penetrating wound situated on back of left shoulder on its lower part ¾" x ½" going inside the muscles only upto depth of 2", transverse. (ii) Penetrating wound situated on back of chest 2" right to midline at the level of 4th thoracic vertebrae ¾" x ½". (iii) Penetrating wound ½" x 3/8" situated on back of chest at the level of T9 vertebrae, going downwards laterally upto depth of 2 ½ ", oblique. (iv) Penetrating wound on back of abdomen direction to lower down and laterally 1" x ½", 2½" deep, aly - the muscles of wall, transverse. (v) Penetrating wound situated on back of abdomen 3" left to midline, 1" long, ½" broad at the level of IInd lumer vertebra, going - side the abdominal cavity after penetrating the peritoneum. As per his statement, - margins of wound were clean cut and shape was cruciate like; the margins were everted; abdominal cavity contained about 1 litre of pus; foul smelling and thick pus flakes, intestines and peritoneum were loosely adherent to each other; the abdominal viscera were covered by pus flakes; there was through and through penetration; small intestine on left side of ½"size; there was also penetration in descending colon through and through; this was in the line of 5th penetrating wound and the depth of wound was 4" approximately. 10. In the light of these findings, Dr. D. K. Sakalle expressed the opinion that cause of Duasiya's death was toxemia leading to cardio-respiratory failure due to eugenic peritonitis as a result of injury no.(v) [above]. According to him, all the aforesaid injuries were ante-mortem and caused by sharp and penetrating object. In his cross-examination, he further admitted that (a) only injury no.(v) was grievous in nature and had resulted in peritonitis and (b) occurrence of peritonitis could have been prevented by resorting to proper treatment. 11. All this evidence was rightly accepted by learned trial Judge to hold that Duasiya had met with a homicidal death. 12. In his cross-examination, he further admitted that (a) only injury no.(v) was grievous in nature and had resulted in peritonitis and (b) occurrence of peritonitis could have been prevented by resorting to proper treatment. 11. All this evidence was rightly accepted by learned trial Judge to hold that Duasiya had met with a homicidal death. 12. Coming to the other evidence on record, it may be observed that although Gourabai (PW1), Balaram (PW2), Krishnakant Pandey (PW3) and Halkeram (PW4) proved the veracity of the incident yet, none of them supported the prosecution version to the effect that Duasiya had apprised them of the fact that she had been assaulted with a knife by the appellant only. Thus, the prosecution case hinges on the dying declarations in the form of - (a) Dehati Nalishi (Ex.P13-B), stated to have been recorded by SHO Suresh Chandra Goswami (PW9) at the instance of Duasiya at about 1.30 in the night intervening 26th and 27th of December, 1992 at Victoria Hospital. (b) Statement (Ex.P-20) of Duasiya said to have been recorded by Executive Magistrate J. L. Ahake (PW13) on 26-12-1992 at 11.10 p.m. 13. Nothing could be elicited in the cross-examination of Suresh Chandra Goswami (PW9) so as to suggest that he was, in any way, interested in securing conviction of the appellant on absolutely false grounds. Dehati Nalishi (Ex.P13-B) was suggestive of the inference that it was the appellant only who had authored the injuries found on the body of Duasiya. 14. As propounded by the Supreme Court in Khushal Rao vs. State of Bombay, AIR 1958 SC 22 , dying declaration must be examined with caution as maker of the statement cannot be subjected to cross-examination but there is no rule of law or rule of prudence that dying declaration cannot be accepted unless it is corroborated. In Munnu Raja vs. State of M. P., AIR 1976 SC 2199 , although it was observed that the practice of investigating officer himself recording dying declaration ought not to be encouraged yet, it was also laid down that where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. 15. 15. Recitals of Dehati Nalishi were consistent with the contents of the dying declaration (Ex.P-20) scribed by Executive Magistrate J. L. Ahake, who was also emphatic in stating that in answer to a query as to whether Duasiya was in a fit condition to give statement, doctor had recorded an affirmative answer. 16. While placing reliance on decisions of the Apex Court in Kanchy Komuramma vs. State of A. P., 1995 Supp (4) SCC 118 and Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra Pradesh, (2007)15 SCC 465 , learned Senior Counsel has submitted that non-examination of the doctor certifying fitness of Duasiya was sufficient to render it unsafe to rely on the dying declaration. However, the contention is unacceptable in view of decision of Constitution Bench in Laxman vs. State of Maharashtra, AIR 2002 SC 2973 , wherein it was held that even absence of doctor's certificate as to fitness of declarant's state of mind, would not render the dying declaration unacceptable. Further, evidence on record duly proved these surrounding circumstances - (i) Dehati Nalishi (Ex.P13B) was scribed at about 1.30 in the night intervening 25th and 26th of December, 1992. (ii) Dying declaration (Ex.P/20) was recorded on 26-12-1992 at 11.10p.m. (iii) Duasiya had expired on 29-12-1992 at about 7 a.m. In such a factual scenario, omission to examine the doctor who had certified that before making dying declaration, Duasiya was in a proper mental condition, did not assume any significance, particularly when the declaration was consistent in material particulars with Dehati Nalishi recorded 10 hours earlier at the instance of the declarant only. 17. Still, placing implicit reliance on the decision of the Supreme Court in Gopal Singh vs. State of M. P., AIR 1972 SC 1557 , learned Senior Counsel has contended that since none of the dying declarations contained complete name and address of the appellant, conviction could not be based on them and as such, the dying declarations could not have been accepted without corroboration. 18. The defence, in substance, was that the appellant is not known by the name 'Raju' and name of his mother is Guddan Bai and not Shantibai. To substantiate the plea, he examined three witnesses. 18. The defence, in substance, was that the appellant is not known by the name 'Raju' and name of his mother is Guddan Bai and not Shantibai. To substantiate the plea, he examined three witnesses. The first one namely Ramcharan (DW1), posted as Accountant in the office of District Education Officer, Jabalpur, deposed that in the school record maintained at the office, name of the appellant was mentioned as Pradeep Kumar, son of Phool Chand. The second witness Ramsajeevan (DW2) claiming to be owner of the house situated at Shitla Mai, Jabalpur, came forward to state that father of the appellant had resided as tenant in that house during the period from 1992 upto December 1994 and the last one Nimma (DW3), who is none other the sister of appellant, while refusing to have acquaintance with Duasiya, asserted that in December 1992, her parents were not residing in Lalit colony. However, fact of the matter is that in the spot panchnama (Ex.P-4) and map (Ex.P-7) stated to have been prepared by Investigating Officer Suresh Chandra Goswami (PW9) in presence of Krishnakant (PW3) and Halkeram (PW4), the appellant was shown to be the next door neighbour of Duasiya and no dispute was raised in the cross-examination of Suresh Chandra Goswami as to the recitals of these two documents suggesting that residence of the appellant was situated adjacent east to the place of occurrence i.e. the courtyard. Both the panch witnesses, though declared hostile by the prosecution, candidly admitted that the appellant was known to them from before the occurrence. The other inhabitants of Lalit colony namely Gourabai (PW1) and Balaram (PW2) also supported the statement made by Krishnakant that the appellant had been living in their neighbourhood only. 19. Moreover, as rightly highlighted by learned trial Judge - (i) In arrest memo (Ex.P-8), memorandum (Ex.P-5), seizure memos (Ex.P-2 and Ex.P-3), the appellant had signed as Raju Pradeep. (ii) Ramcharan (DW1) pleaded complete ignorance of the fact that appellant is also known by the name of Raju. (iii) No documentary evidence in the form of Ration card, voter list etc. was adduced to show that appellant's mother's name was Guddan Bai and not Shantibai. 20. (ii) Ramcharan (DW1) pleaded complete ignorance of the fact that appellant is also known by the name of Raju. (iii) No documentary evidence in the form of Ration card, voter list etc. was adduced to show that appellant's mother's name was Guddan Bai and not Shantibai. 20. In the light of these facts and attending circumstances, assertion made by Ramsajeevan (DW2) and Nimma (DW3) that in the year 1992, the appellant was residing in the house of Ramsajeevan located at Shitla Mai was rightly ignored as far from being convincing. This apart, Dehati Nalishi (Ex.P-13B) not only reflected name and caste of the assailant but also indicated that he was the son of Shantibai residing in the same locality whereas in dying declaration (Ex.P-20), the person causing injuries to the declarant was again referred to as the son of Shanti. As indicated already, there was no document to show that Shanti was not the name of appellant's mother. Thus, it was not a case of mistaken identity as the deceased and the appellant were next door neighbours knowing each other well since long. 21. For these reasons, none of the contentions raised against the reliability of dying declarations is acceptable. The dying declarations, found to be voluntary and made in a fit mental condition, could be relied on even without any corroboration. As an obvious corollary, the fact that none of the witnesses named in the FIR substantiated the prosecution version regarding identity of the appellant as the person who had caused death of Duasiya, was of no consequence. 22. To sum up, learned trial Judge did not commit any illegality in holding that it was the appellant who had caused death of Duasiya. 23. The next question that remains to be answered is as to whether learned trial Judge committed any error in convicting the appellant under section 304 Part I of the Indian Penal Code ? 24. Learned Senior Counsel, while placing reliance on decision of the Apex Court in Molu's case (ibid), has submitted that at the most, appellant could have been convicted under section 304 Part II, Indian Penal Code. 24. Learned Senior Counsel, while placing reliance on decision of the Apex Court in Molu's case (ibid), has submitted that at the most, appellant could have been convicted under section 304 Part II, Indian Penal Code. However, fact of the matter is that in that case, multiple injuries received by the deceased persons, were caused by blunt weapons like lathis and they were of minor character and none of the injuries was on any vital part whereas, in the instant case, as many as five penetrating wounds were found on the body of Duasiya. The Supreme Court, in Jayaraj vs. State of Tamil Nadu, AIR 1976 SC 1519 , which was also a case of death due to peritonitis arising from stab injury, explained the difference between 304 Part I and 304 Part II in the following terms - "The first clause of section 300 reproduces the first part of section 299. Therefore, ordinarily if the case comes within clause (a) of section 299, it would amount to murder. However, if one of the special exceptions in section 300 applies, the offence would be culpable homicide not amounting to murder. If the act of the accused falls under clause (b) of section 299, that is to say, if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature, clause Thirdly of section 300 would not apply". 25. Existence of multiple injuries on Duasiya's back only clearly indicated that repeated blows were given with intention to deliberately cause her death. 26. Accordingly, conviction of the appellant under section 304 Part I of the Indian Penal Code deserves to be affirmed as well merited. 27. This brings me to the question of sentence. It is well settled that sentence should be commensurate with gravity of offence. Taking into consideration social impact of the offence and other facts and circumstances of the case, indicating that the injuries found fatal to Duasiya were caused after committing lurking house trespass by night, custodial sentence of 10 years' R.I deserves to be maintained. 28. Consequently, the appeal stands dismissed. The impugned conviction and consequent sentences are hereby affirmed. 29. The appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on 16-5-2012 for being committed to custody for undergoing remaining part of sentence.