JUDGMENT By Court. - Heard Mr. K.P. Deo, learned amicus curiae assisted by Mr. Ashish Kumar on behalf of the Appellant. They were appointed amicus Curiae on 02.05.2012 to assist the Court as nobody appeared on behalf of the appellant. Heard counsel for the State also. 2. This criminal appeal has been directed against the Judgment of conviction and order of sentence dated 15th April, 1991 and 22nd April, 1991 respectively passed by the Sessions Judge, Santhal Parganas at Dumka in Sessions Case No. 195 of 1987 convicting the appellant to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code. 3. The prosecution case in brief is that Shakinath Mandal (PW 4) lodged fard beyan before the Police on 16.08.1986 at about 6:00 p.m. in presence of others that at about 3:30-4:00 p.m., there was quarrel between the children of the parties whereupon, the appellant and others came there using filthy language. Appellant was having his licensed double barrel gun. The brother of the informant Hiranath Mandal (deceased) warned the accused persons not to use filthy language. On this, the appellant caused fire-arm injury on his chest which hit him under his neck due to which he fell and became unconscious. The appellant again fired thrice at the instigation of his brother and father, towards the informant party for killing them but seeing themselves in danger, they hide themselves behind the trees due to which they did not suffer firearm injury. Several witnesses had seen the occurrence. The accused persons filed away. Hiranath Mandal was taken to the Hospital where his treatment was going on The dying declaration of Hiranath Mandal was recorded by Dr. K.D. Sinha (PW 13) in Sadar Hospital. On this fard beyan, FIR was lodged. 4. Learned counsel for the appellant assailed the impugned Judgment on various grounds. He submitted that the FIR is hit by Section 162 of Cr PC. However, the deceased died after 15-16 days during treatment. Had proper treatment been given to him, his life could have been saved. Further, he submitted that there are major contradictions in the evidences of alleged eye-witnesses which makes the entire prosecution story doubtful. 5. On the other hand, learned counsel for the State supported the impugned Judgment. 6. However, the deceased died after 15-16 days during treatment. Had proper treatment been given to him, his life could have been saved. Further, he submitted that there are major contradictions in the evidences of alleged eye-witnesses which makes the entire prosecution story doubtful. 5. On the other hand, learned counsel for the State supported the impugned Judgment. 6. It is not possible to accept the first submission of the counsel for the appellant that the FIR is hit by Section 162, Cr PC. The dying declaration was recorded by the Doctor in the Operation Theater who was treating the deceased. From the dying declaration (Ext.-5), it appears that the Doctor asked the injured as to who were present at the time of alleged occurrence. The injured replied that the appellant and others were present. Then the Doctor asked as to who caused fire-arm injury on him to which he replied that the appellant was having gun and he fired. It appears that the said enquiry was made by the Doctor from the injured during his treatment in the operation theater which was treated as dying declaration when the injured died. In such circumstances, it appears that the dying declaration was not recorded by the Police and, therefore, it cannot be said that FIR is hit by Section 162. Cr PC. 7. Similarly, next submission made on behalf of the appellant that the life of the injured could have been saved had he been given proper treatment and, therefore, Section 302 of the Indian Penal Code is not attracted, is also not acceptable. From the evidence of PW 8 Dr. H.I. Ansari who conducted post-mortem examination, it appears that injured died after about 15 days during treatment. The Doctor found one healing wound with crust in the lower part of the neck. He also found Pus in the chest cavity with gangrenous look. He also found a deformed metallic ball lodged in left side muscle of back in scapular region. In the opinion of the Doctor, the death was caused due to haemorrhage and infection following injury to the lung, and the aforesaid injury of the lung was sufficient to cause death in ordinary course of nature. Thus it appears that the cause of death was gun shot injury caused by the appellant. 8. There are several eye witnesses of the alleged occurrence. Thus it appears that the cause of death was gun shot injury caused by the appellant. 8. There are several eye witnesses of the alleged occurrence. PW 1 Nehali Mandal, PW 4 (Informant)-Shaktinath Mandal, PW 6 Sukhdeo Mandal, PW 7 Ram Prasad Sah, have fully supported the prosecution case. PW 9 and PW 10 are tendered witnesses. PW 11 Jai Kumar Yadav is the first Investigating Officer and had issued requisition slip for the injured. PW 13 Dr. K.D. Sinha is the Doctor who initially treated the injured and recorded the dying declaration. PW 14 is a formal police witness who proved the inquest report. PW 15 is the sergeant major of Dumka who examined the gun used in the case. PW 16 is the Investigating Officer. He also seized the incriminating materials. He was the Officer Incharge and had recorded the Formal FIR. He conducted part of Investigation. This witness has inter alia said that PW 12 Chunilal Mandal and PW 9 Lakhi Narain Mandal did not give statement before him and said that they will give their statement in the Court. 9. After carefully going through the record and hearing the parties at length, in our opinion the prosecution has been able to prove its case against the appellant beyond all reasonable doubt that he, along with others, came prepared with his licencee double barrel gun after there was, quarrel between the children of the parties; used filthy languages, which was protested by the, deceased and on such protest, the appellant shot fire by his gun on the deceased, causing his death during treatment. It is not the case where the occurrence took place in spur or moment. The intention is to be gathered from the weapon used and the part of the body chosen to cause the injury. In the instant case, the injury has been caused by gun on the chest of the deceased. 10. In view of the facts and circumstances of the case, we do not find any reason to interfere with the findings recorded by learned Sessions Judge in its Judgment under appeal. Accordingly, the same is hereby affirmed and this appeal stands dismissed. The appellant is on bail. His bail bonds are hereby cancelled. The convicting/successor Court shall take steps for his arrest, for undergoing rest of the sentence. Appeal dismissed.