JUDGMENT 1. - This Criminal Appeal under Section 374 Cr.P.C. has been filed against the judgment dated 11.11.2003 passed by the learned Additional Sessions Judge, Kotputli, Jaipur in Sessions Case No. 19/2000 whereby the present appellant has been convicted and sentenced for the offence under Sections 302 and 379 IPC as under: Section 302 IPC: Life Imprisonment and a fine of Rs. 1000/-, in default of payment of fine further undergo three months' imprisonment. Section 379 IPC: One years' Rigorous Imprisonment. (Both the sentences were ordered to run concurrently). 2. The short facts of the case are that on 14.07.2000, the statement of Mahaveer son of Mali Ram has been recorded at BDM Hospital, Kotputli, Jaipur by PW-16 Ranmal S.I. wherein it has been stated that Mahaveer is the resident of village Alampur, Chirawa, District Jhunjhunu, three four days back, he came with Brij Mohan to purchase diesel pump. On 14.07.2000 at 04.00 am in the morning,when he was sleeping in Brij Mohan's Room, he gave beatings with lathi and none was there to save him. Brij Mohan also took Rs. 2,500/- cash and his papers. Thereafter, Brij Mohan asked him to wash the blood. Mahaveer asked him to bring some medicines because he has received injuries. When the appellant went to bring the medicines, he ran away. He received injuries on leg, hand and head. On this statement, FIR No. 456/2000 has been registered for the offence under Section 323, 342, 389 and 307 IPC. On 16.07.2000, Mahaveer died and offence under Section 302 IPC has been added. After investigation, charge sheet was filed against the appellant. The case was committed and transferred to the Additional Sessions Judge, Kotputli, Jaipur. The learned court below framed the charges against the appellant for the offence under Section 302 and 379 IPC. The appellant denied the charges and claimed trial. The prosecution examined PW-1 Chandrabhan, PW-2 Sushil Kumar, PW-3 Dilip Singh, PW-4 Mahendra Kumar Sharma, PW-5 Madan Singh, PW-6 Kayam Singh, PW-7 Om Prakash, PW-8 Jagan Prasad, PW-9 Jai Ram, PW-10 Krishan Kumar Bhojwani, PW-11 Rajendra Kumar, PW-12 Dr. Birbal Yadav, PW-13 Sampat Ram, PW-14 Ratiram, PW-15 Ramji Lal and PW-16 Ranmal Singh to support its case and also relied on Ex.P-1 to Ex.P-19 documents. Statement of the appellant under Section 313 Cr.P.C. has been recorded. No oral or documentary evidence has been produced by the accused in his defence. Birbal Yadav, PW-13 Sampat Ram, PW-14 Ratiram, PW-15 Ramji Lal and PW-16 Ranmal Singh to support its case and also relied on Ex.P-1 to Ex.P-19 documents. Statement of the appellant under Section 313 Cr.P.C. has been recorded. No oral or documentary evidence has been produced by the accused in his defence. After conclusion of the trial, the present appellant has been convicted and sentenced as stated above. Hence this appeal. 3. The contention of the appellant is that he has been implicated falsely. No motive has been assigned to him to commit such a heinous crime. There was no reason for him to commit the crime. Most of the prosecution witnesses have been declared hostile. Dying declaration could not be believed as there is no medical opinion that Mahaveer was in a fit condition to depose. Admittedly he was admitted in hospital on 14.07.2000 but no injury report of the deceased has been prepared. No blood has been found in the room. The cause of death of deceased is excessive haemorrhage. None of the injury was found sufficient to cause death in ordinary course of nature, hence, present appellant be acquitted of the charges. 4. Per contra, the contention of the learned Public Prosecutor is that the dying declaration is trustworthy and voluntary and the learned court below has rightly relied on the same. If the dying declaration is voluntary and truthful, conviction could be based on it alone. There are attending circumstances also. Prosecution witnesses have stated that the deceased Mahaveer was living with appellant from last three-four days. Stick has been recovered which was found blood stained and blood group has matched with the clothes of the deceased. The conduct of the appellant is also relevant as he was not going at his job since 14.07.2000 and there is no infirmity in the reasoning and conclusion of the learned court below. 5. Heard the learned counsel for the appellant and the learned Public Prosecutor and perused the impugned judgment as well as original record of the case. 6. The prosecution has based its case mainly on the dying declaration Ex.P-16 recorded by PW-16 Ranmal Singh, S.I. PW-16 Ranmal Singh had deposed that after obtaining permission from the concerned doctor he has recorded the statement of the deceased and duty doctor Laxman Singh Soral has also attested it. 6. The prosecution has based its case mainly on the dying declaration Ex.P-16 recorded by PW-16 Ranmal Singh, S.I. PW-16 Ranmal Singh had deposed that after obtaining permission from the concerned doctor he has recorded the statement of the deceased and duty doctor Laxman Singh Soral has also attested it. In dying declaration, it has been categorically stated that on 14.07.2000 at about 04.00 am in the morning, deceased was beaten by Brij Mohan and he has received several injuries. Postmortem has been conducted by PW-12 Dr. Birbal Yadav who has stated that deceased has received 11 injuries and cause of death is shock due to excessive haemorrhage from multiple injuries and all injuries are found ante mortem in nature which clearly proves that as a result of beating given by the accused appellant, deceased received multiple injuries and in consequence of the same, he died. Direct nexus between injuries and death has been established by the prosecution. Nothing has been narrated in the statement of PW-16 Ranmal Singh that dying declaration is not true or it has not been recorded properly. Dying declaration has been recorded at the hospital where no other person related to any of the parties were present. Hence, there was no occasion for tutoring. The duty doctor Laxman Singh Soral has also verified the same. It has been recorded by a person who was not having any interest or enmity with any of the parties.The learned court below has rightly relied on the dying declaration as is true and free from any effort to induce or to make false statement. There is no inconsistency in the dying declaration. The contention of the appellant is that the duty doctor Laxman Singh Soral who has verified the fitness of the deceased has not been produced. It is true that he has not been produced but merely because that duty Doctor has not been produced, the dying declaration cannot be discarded and reliance has been placed on Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 611 ,wherein it has been held: "that for basing conviction on dying declaration, same must pass all tests of voluntariness, fit condition of mind of maker of dying declaration, witness not being influenced by any other factors and truthfulness of dying declaration. Though importance of evidence of Doctor as regards fitness of maker to make it cannot be understated, yet there could be cases,where though there is no certification by Doctor, still dying declaration can be accepted. On facts of that case, it was held that instant case belonged to such category and thus non-endorsement of Doctor on dying declaration was inconsequential." 7. Here in the present case, PW-16 Ranmal Singh has stated that he took the permission from the Doctor to take the statement of the deceased and after the statement, Doctor has also verified it then mere non production of duty doctor, voluntary statement cannot be discarded and it can safely be held that dying declaration alone proves the guilt of the appellant beyond reasonable doubt. 8. Apart from dying declaration, there are other circumstantial evidence also which proves the guilt of the accused and corroborates the facts mentioned in the dying declaration. PW-2 Sushil Kumar and PW-3 Dilip Singh are the sons of the deceased who have stated that their father went with the appellant for purchasing the diesel pump-set and the father was also carrying Rs. 3,000/-. 9. PW-8 Jagan Prasad is the owner of the room in which the appellant was the tenant and his contention is that one person was stayed with the appellant and now he has been hospitalized. This witness has been declared hostile by the prosecution but he endorsed this fact. 10. PW-10 Krishan Kumar Bojwani is the person with whom the appellant was working as Mechanic. He has stated that after 13.7.2000, the appellant did not turn up on his duty. These all facts also go against the appellant and in favour of the averment of the prosecution. Deceased stayed with the appellant, he was also carrying money and he has to purchase diesel pump set. Dying declaration of the deceased also reveals the same story. 11. The other contention of the counsel for the appellant is that no injury report of the deceased has been prepared. Injuries suffered by the deceased have been mentioned in post mortem report hence non preparation of injury report is of no effect.. 12. The clothes pent and shirt of the deceased have been seized vide Ex.P-4 and stick used for beating has been recovered at the information and instance of the accused appellant. Injuries suffered by the deceased have been mentioned in post mortem report hence non preparation of injury report is of no effect.. 12. The clothes pent and shirt of the deceased have been seized vide Ex.P-4 and stick used for beating has been recovered at the information and instance of the accused appellant. Clothes and stick have been sent to Forensic Science Laboratory and FSL report Ex.P-18 proves that on the clothes and stick 'A' Group blood was found which also corroborates the facts alleged by the prosecution. 13. The objection has been raised that no blood stains have been found on the spot. Ex.P-5 site inspection memo reveals that blood has been washed which also goes with the narration in the dying declaration. 14. In the light of above discussion, dying declaration recorded by PW-16 Ranmal Singh is sufficient to prove the guilt of the appellant as the dying declaration is true and voluntary and no shadow of doubt could be cast on the same and dying declaration has been further corroborated by the circumstantial evidence as discussed above. The court below has rightly arrived at a conclusion that the present appellant is guilty of inflicted injuries to the deceased. 15. As per post mortem report Ex.P-14 deceased has sustained 11 injuries but none of them have been found sufficient in ordinary course of nature to cause death. Cumulative effect of the injuries and excessive haemorrhage from the multiple injuries have lead to the death. It is also not a case of the prosecution that parties were inimical before the incident. The deceased has not anticipated his death and he sent the appellant to bring medicines. The injuries are not the immediate result of the death, due to excessive bleeding deceased died and that too after two days of the incident. 16. PW-16 Ranmal Singh Investigation Officer has stated that deceased died on 16.7.2000 and there is discrepancy between the post mortem report Ex.P-14 and evidence of PW-16 Ranmal Singh. Ex.P-14 suggests that death has taken place 36-48 hours prior to the post mortem and post mortem has been conducted on 16.7.2000 at 11.00 AM, hence totality of the circumstances suggests that none of the injuries itself is sufficient in ordinary course of nature to cause death. Injuries are not the immediate cause of death and the death has also been caused due to excessive hemmorahage. Injuries are not the immediate cause of death and the death has also been caused due to excessive hemmorahage. Time of death is also not clearly established. Motive has not been disclosed as deceased was not having any inimical relations with the appellant. When the appellant went to bring the medicines, the deceased was alive. No deadly weapon has been used for the offence. Hence, looking at the above, we deem it proper to convert the conviction of the appellant to 304 Part-I IPC. 17. Consequently, the appeal is partly allowed. The conviction and sentence u/s 379 is maintained. The conviction under Section 302 IPC is converted into Section 304 Part-I IPC, appellant has suffered imprisonment for 10 years and four months, his substantive sentence is reduced to the period already undergone. Appellant is in jail, he be released forthwith on deposit of fine ordered by the court below if not required in any other case. 18. However, keeping in view of the provisions of Section 437A of the Code of Criminal Procedure, appellant Brij Mohan is directed to forthwith furnish personal bond in the sum of Rs. 20,000/-, a surety bond in the like amount, before Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, accused-appellant Brij Mohan, on receipt of notice thereof, shall appear before the Supreme Court.Appeal partly allowed. *******