JUDGMENT : Bharat Bhushan, J. 1. Sole appellant Sabir Husain has challenged the judgment and order dated 25.01.1983 passed by the then Special Judge/Additional Sessions Judge, Bijnor in Sessions Trial No. 316/1982 (State Vs. Sabbir Husain) arising out of Crime No.141 of 1982 under Section 302 of Indian Penal Code (in short IPC), Police Station (P.S.) Seohara district Bijnor whereby the appellant was convicted and sentenced to undergo a life imprisonment. 2. The prosecution story in brief is that on 08.08.1982 complainant, Zakir Husain (P.W. 3) had gone to visit his in laws' home (Sasural) at Sahaspur and returned from there at about 8 pm. Apparently his deceased wife Anisa and his brother appellant Sabir Husain had some sort of verbal altercation during the day in consequence of which appellant Sabir had assaulted deceased Anisa. This incident was reported to informant Zakir Husain (P.W. 3) by his wife (Anisa). Zakir scolded both his brother (accused Sabir) as well as his wife Anisa (deceased). It appears that some hot talks erupted and Zakir Husain (P.W. 3) slapped his wife (deceased Anisa). 3. This commotion made the neighbours arrive on the spot. Kalwa S/o of Saddik pacified informant Zakir Husain and took him to his residence. At 9 pm informant Zakir Husain again came back to his home in the company of Bundu S/o Saddik (P.W. 2) and Abdul Wahid (P.W.1). Suddenly he heard the scream of his wife Anisa and saw that appellant Sabir Husain was rushing out of his residence. Appellant Sabir was recognized in the flash light held by Bundu (P.W. 2). However, appellant Sabir managed to escape. All of them entered the house and saw that his blood stained wife was lying on the cot. On being asked the source of this injury, deceased Anisa stated that she had been stabbed by appellant Sabir. Deceased Anisa immediately succumbed to her injuries. Her husband Zakir Husain got F.I.R. scribed by one Mohd. Yusuf son of Hazi Husain in Urdu which was later on lodged at Police Station Seohara at 21:45 pm. i.e. within 45 minutes of incident. It is pertinent to point out that P.S. Seohara is only one furlong away from the place of incident. F.I.R. was recorded by P.W. 4 Om Prakash, Head Constable of P.S. Seohara. Entry was made in the Chik 109 in Crime no.141 of 1982 under Section 302 (Ex. Ka-6). i.e. within 45 minutes of incident. It is pertinent to point out that P.S. Seohara is only one furlong away from the place of incident. F.I.R. was recorded by P.W. 4 Om Prakash, Head Constable of P.S. Seohara. Entry was made in the Chik 109 in Crime no.141 of 1982 under Section 302 (Ex. Ka-6). This was also entered immediately into General Diary (G.D.) of P.S. Seohara (Ext. Ka-7). The investigation was entrusted to P.W. 6 Meer Singh. Report was lodged in his presence. He recorded the statements of constable clerk and scribe of FIR Moh. Yusuf thereafter rushed to the place of occurrence. A gas lantern was arranged and inquest proceedings were conducted. Inquest report (Ex. Ka-9) is available on record. 4. The cadaver of deceased was given to two constables, viz, Raj Kumar and Budh Deo. A blood stained knife was also recovered from nearby the cot of deceased. The memorandum of recovery was prepared as Ex. Ka-1. 5. The Investigating Officer (I.O.) recorded the statements of Zakir, Bundu and Wahid etc. The previous statement of informant Zakir Husain (P.W.3) was proved as Ex. Ka-14. A search was made for accused Sabir but he could not be arrested. It appears that appellant Sabir by that time had fled to Ahmadabad, Gujrat without informing anybody. Ultimately, appellant was arrested after several days in Ahmadabad and thereafter a charge sheet (Ex. Ka-15) was submitted against him. 6. It is pertinent to point out that P.W. 6 Meer Singh was a new Sub Inspector. He has also conceded that it was his first investigation for offence under Section 302 IPC. This information is necessary for later stage. We will note that there were certain weaknesses in the formal investigation. 7. The Trial Judge charged accused appellant Sabir under Section 302 IPC on 07.01.1983 and thereafter recorded the evidence of prosecution. As many as six witnesses were produced by prosecution. P.W. 1 Abdul Wahid, P.W. 2 Bundu and P.W. 3 Zakir Husain (informant), P.W. 4 Constable Om Prakash, P.W. 5 Dr. J.P. Srivastava and P.W. 6 Meer Singh (I.O.). The statement of appellant was recorded under Section 313 Cr.P.C. He denied all allegations and stated that he had been falsely implicated on account of some enmity. Opportunity was given to defence to produce evidence, however, defence did not avail of this opportunity. J.P. Srivastava and P.W. 6 Meer Singh (I.O.). The statement of appellant was recorded under Section 313 Cr.P.C. He denied all allegations and stated that he had been falsely implicated on account of some enmity. Opportunity was given to defence to produce evidence, however, defence did not avail of this opportunity. The Sessions Judge concluded that there was sufficient evidence against appellant Sabir and therefore convicted and sentenced him under Section 302 IPC to undergo life imprisonment vide judgement and order dated 25.1.1983. This judgement is under challenge before this Court. 8. Heard Sri Kamlesh Kumar, learned counsel for appellant and Sri Sayed Ali Murtaza learned A.G.A. on behalf of State. 9. Learned counsel for the appellant has submitted that prosecution has failed to prove this allegation by trustworthy evidence; that three witnesses of fact have been produced out of which two have not supported prosecution case. Scribe of the FIR was not produced by the prosecution; that even sole witness, namely, P.W. 1 Abdul Wahid did not see the incident himself and the entire case depends on circumstantial evidence including dying declaration of deceased Anisa; and that dying declaration of Anisa has not been corroborated by any independent evidence. 10. Per contra learned AGA has relied upon the decision of Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 and stated that sole dying declaration alone can be made the basis of conviction as held by the Apex Court in catena of decisions including Pakala Narayan Swami Vs. Emperor (1939) 41 BomLR 428. 11. Before analyzing the prosecution evidence in detail, it would be appropriate to describe the prosecution evidence in brief. P.W. 1 Abdul Wahid accompanied informant Zakir back to his residence at about 9 pm on the date of incident. This witness has stated that he was neighbour of informant Zakir (P.W.3). He has referred to earlier incident of day time altercation between appellant Sabir and deceased Anisa. But this incident was not witnessed by him. He heard about that incident. Somewhere around 8 pm. Anisa deceased made a complaint to her husband Zakir about the behaviour of his brother Sabir. P.W.3 Zakir reprimanded both deceased Anisa as well as Sabir. One Kalwa managed to calm down the informant and took him to his residence. P.W. 1 Abdul Wahid and P.W. 3 Zakir (informant), thus went to the residence of Kalwa. Somewhere around 8 pm. Anisa deceased made a complaint to her husband Zakir about the behaviour of his brother Sabir. P.W.3 Zakir reprimanded both deceased Anisa as well as Sabir. One Kalwa managed to calm down the informant and took him to his residence. P.W. 1 Abdul Wahid and P.W. 3 Zakir (informant), thus went to the residence of Kalwa. This house was shared by Bundu (P.W.2), brother of Kalwa. Informant Zakir spent some time at the residence of Kalwa/Bundu. They heard some commotion and started towards the residence of Zakir. P.W. 1 Abdul Wahid and P.W.2 Bundu were flashing battery torches. As soon as they reached near the residence of Zakir, appellant Sabir scampered out of his house in a frightened state in the lane towards south. In fact appellant Sabir collided with the witnesses. He was identified in the light of battery torch. All witnesses rushed into the house of Zakir. Deceased Anisa was lying in a wounded state. Blood was flowing from the injury. A knife was also lying nearby the cot. Deceased Anisa made a declaration that she had been stabbed by appellant Sabir Husain. Thereafter report was lodged. Investigating Officer came and further proceedings were conducted. 12. P.W. 2 Bundu has initially given similar statement. He also stated that as soon as they reached the place of occurrence, appellant Sabir Husain came out from the residence of Zakir in a frightened state. He further stated that deceased Anisa told them that she had been stabbed by appellant Sabir Husain. An infant was also lying besides deceased Anisa. He also stated that the person who ran from the house of informant Zakir was Sabir. This statement was given by P.W. 2 Bundu on 20.1.1983 in the court which could not be completed on the same day, therefore, the remaining cross examination was conducted on 21.1.1983. However, within these 24 hours, P.W. 2 Bundu changed the track. This time he stated that he did not hear dying declaration of deceased Anisa naming appellant Sabir Husain as perpetrators of the crime. He explained that he had heard the noise of children saying that deceased Anisa had been stabbed by appellant Sabir. He also added one new story that P.W. 1 Abdul Wahid reached the cot of Anisa after him. This witness was declared hostile and was cross examined by prosecutor after prior permission of the court. He explained that he had heard the noise of children saying that deceased Anisa had been stabbed by appellant Sabir. He also added one new story that P.W. 1 Abdul Wahid reached the cot of Anisa after him. This witness was declared hostile and was cross examined by prosecutor after prior permission of the court. During this cross examination he again stated that his earlier statement recorded on 20.1.1981 was correct one. However, he again resiled from his statement and stated that he personally did not hear stated dying declaration of Anisa. 13. P.W. 3 Zakir is real brother of appellant Sabir and husband of deceased Anisa. He is one who lodged the FIR. He has confirmed that his wife was murdered in the night of 8.8.1982 at about 9 pm but other than this, he refused to support his own story given in the FIR. He claimed that FIR (Ex. Ka-5) was in fact lodged by him under the pressure of Police and that; the report was dictated to Mohd. Yusuf by Police personnel of their own and later on forced him to sign it. 14. He has supported the part of the story saying that he came back in the night of 8.8.1982 at 9 pm. His wife Anisa was at residence. He came to his residence, stayed there few minutes and went to the residence of P.W.2 Bundu. He did not notice the presence of appellant Sabir at his residence. On a commotion emanating from his residence, he again came back to his residence alone and found his wife in a injured condition. He asked her about the incident but she could not say anything and died. He has also stated that Bundu, Abdul Wahid and other persons came subsequently. 15. However, informant Zakir (P.W. 3) has made two admissions. One that when he left his residence in the morning for Sasural (inlaws home), Sabir was at his residence who had come from Ahmadabad, Gujrat to celebrate Eid. But subsequent to the murder of deceased Anisa, appellant Sabir Husain left the residence and went to Ahmadabad without informing anybody. He has conceded that appellant Sabir did not meet him before going to Ahmadabad. He has also admitted that appellant Sabir was arrested in Ahmadabad. 16. This witness (informant Zakir) was cross examined by prosecutor after declaring him hostile. But subsequent to the murder of deceased Anisa, appellant Sabir Husain left the residence and went to Ahmadabad without informing anybody. He has conceded that appellant Sabir did not meet him before going to Ahmadabad. He has also admitted that appellant Sabir was arrested in Ahmadabad. 16. This witness (informant Zakir) was cross examined by prosecutor after declaring him hostile. This witness has disowned his statement under Section 161 Cr.P.C. However, he has admitted that assailant/appellant Sabir, his wife Anisa and he himself used to live in the same house and that; his wife died on 8.8.1982 at about 9 pm. after sustaining injury. P.W. 4 Om Prakash is a formal witness who recorded FIR. P.W. 5 J.P. Srivastava conducted postmortem and P.W. 6 Meer Singh (S.I.) investigated the case. 17. P.W.5 J.P. Srivastava found following ante mortem injury on the person of deceased Anisa: “Stab wound clean cut left side chest supra mammary 6 cm x 2 cm long deep, left side cavity cut at 8'O'clock position. Clotted blood was present. In the opinion of Dr. Srivastava, the death had been caused due to shock and haemorrhage, as a result of the aforesaid injury and this injury was sufficient in the ordinary course of nature to cause her death. It might have been caused by a knife and on 8.8.1982 at about 9 pm.” 18. During testimony the witness (Dr. J.P. Srivastava) stated that deceased Anisa died of sole stab wound. He has also opined that deceased could have died on 8.8.1982 at about 9 pm. Incidentally autopsy of deceased was conducted on 09.09.1982. This witness has conceded that if a woman falls upon sharp edged daranti, a similar injury could occur. However, he has also stated that in that scenario the few other injuries would have occurred on other parts of the body. The evidence of P.W. 5 Dr. J.P. Srivastava and P.W. 6, Meer Singh, Investigating Officer coupled with the contents of inquest report (Ex. Ka-9) and the testimony of three eye witnesses including two hostile witnesses have established at least one thing that deceased Anisa died due to homicide. All three witnesses including two hostile witnesses have conceded that Anisa was stabbed. This fact had been reiterated by P.W. 5 Dr. J.P. Srivastava. P.W. 6 Meer Singh (S.I.) has also narrated this story. Ka-9) and the testimony of three eye witnesses including two hostile witnesses have established at least one thing that deceased Anisa died due to homicide. All three witnesses including two hostile witnesses have conceded that Anisa was stabbed. This fact had been reiterated by P.W. 5 Dr. J.P. Srivastava. P.W. 6 Meer Singh (S.I.) has also narrated this story. It is pertinent to point out that P.W.6 reached the place of occurrence immediately in the aftermath of the incident. Incident occurred at 9 pm. FIR was lodged 9:45 pm. I.O. claims that he started towards place of occurrence within 30 minutes and reached there within 10-15 minutes. Meaning thereby that I.O. had reached the place of occurrence somewhere around 10:30 i.e. within 90 minutes of the incident. Inquest report which was prepared in the same night also discloses the opinion of the witnesses that deceased Anisa died on account of stab wound. So the core of all this discussions is that there is no dispute regarding the cause of death of deceased Anisa. It is clear that deceased Anisa was done to death by assailant with the use of knife; and that exact attack was not witnessed by anybody. Therefore, we have to discus the evidence of dying declaration relied by the prosecution and Trial Judge. 19. Prosecution story can be divided into three parts. The first part of the incident occurred in day time in the absence of informant Zakir (P.W. 3) as he had left for his Sasural (in-laws house) in the morning and came back later on. It appears that the daughter of deceased, Hanifa was prohibited the consumption of rice by the doctor. However appellant Sabir Husain brought some rice from the house of Bundu P.W.2 which was eaten by Hanifa (daughter of deceased). The mother of informant, Zakir reprimanded the deceased Anisa whereupon the deceased abused the appellant Sabir Husain and said that this person had brought rice. The abuse enraged the appellant Sabir Husain who slapped deceased Anisa. Second part of the incident involves all the principal players. When informant Zakir returned back late in the evening, deceased Anisa made complaint to her husband. Informant Zakir scolded his brother Sabir Husain. Simultaneously, deceased Anisa used abusive language whereupon informant Zakir also berated deceased Anisa and slapped her. The abuse enraged the appellant Sabir Husain who slapped deceased Anisa. Second part of the incident involves all the principal players. When informant Zakir returned back late in the evening, deceased Anisa made complaint to her husband. Informant Zakir scolded his brother Sabir Husain. Simultaneously, deceased Anisa used abusive language whereupon informant Zakir also berated deceased Anisa and slapped her. This incident brought the neighbours to the place of occurrence including one Kalwa, brother of Bundu who pacified everyone and took informant Zakir (P.W. 3) to his residence. Third part of the incident occurred at 9 pm. within one hour of return of Zakir from his Sasural. 20. FIR says that informant Zakir Husain started for his residence around 9 pm. He was accompanied by Abdul Wahid (P.W. 1) and Bundu (P.W. 2). As soon as Zakir came near his residence, he heard the shriek of his wife. Appellant Sabir was also rushing out of the house. He collided with these witnesses. P.W. 2 Bundu recognized him in flash light but appellant Sabir managed to escape. These witnesses entered the house of Zakir, questioned her injured wife who clearly stated that appellant Sabir had stabbed her and thereafter she died. 21. It is apparent that during the first part of the incident, informant Zakir was not present. Second part of the incident involved Zakir (P.W. 3) himself. However when Zakir and other witnesses came to the residence, they found injured Anisa in pool of blood. She informed her husband and his companion witnesses that appellant Sabir Husain had stabbed her. Two things are clear that none of the witnesses saw the incident of stabbing. But immediately i.e. almost at once deceased Anisa communicated the identity of assailant/appellant Sabir to her husband, P.W. 3 Zakir, P.W. 1 Abdul Wahid and P.W. 2 Bundu. The evidence discloses that no one else was present inside the house except an infant child lying besides deceased Anisa. Question is can the reported statement of deceased Anisa be treated as dying declaration? Or is it possible to base the conviction of appellant Sabir Husain on the sole evidence of dying declaration? The evidence discloses that no one else was present inside the house except an infant child lying besides deceased Anisa. Question is can the reported statement of deceased Anisa be treated as dying declaration? Or is it possible to base the conviction of appellant Sabir Husain on the sole evidence of dying declaration? Section 32(1) of Indian Evidence Act (in short Evidence Act) provides that 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 case, in which the cause of that persons' death comes into question, such statements are relevant whether the person who made them was or was not under expectation of death at the time when they were made and whatever may be the nature of proceedings in which the cause of his death comes into question. 22. Now, the question is if a person makes a statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his/her death, then are such statements relevant under Section 32(1) of Evidence Act? 23. A bare perusal of the said provision would indicate that the words 'resulted in his death' do not necessarily mean 'caused his death'. It has been held in plethora of cases that dying declarations are admissible only in so far they point directly to the fact constituting the res gestae of the homicide. 24. In Pakala Narayan Swami (supra) following tests were laid down:- "It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the "circumstances" can only include the acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible …….. Circumstances of the transaction" is a phrase no doubt that conveys some limitations. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible …….. Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence. …….. It will be observed that "the circumstances are of the transaction which resulted in the death of the declarant." 25. The aforesaid principles have been followed in catena of decisions by Apex Court. It is therefore, apparent that the statement of deceased Anisa can only be admissible under Section 32 of Evidence Act if it relates to the circumstances of transactions resulting in her death. 26. Coming back to the facts of the present case, it is apparent that there is no dispute about the death of deceased Anisa. Two witnesses of fact saw and heard few things when they were coming back to the residence of informant Zakir (P.W. 3); (i) they heard the shriek of deceased Anisa when they were near the house of informant Zakir around 9 pm. (ii) Appellant Sabir Husain was seen rushing out of the house in a frightened state and he in fact collided with the witnesses. He was recognized in the light of battery torch held by P.W. 2 Bundu. Appellant Sabir Husain managed to escape. (iii) when witnesses entered inside the house, they found Anisa in a blood stained wounded state. (iv) when questioned by her husband, deceased Anisa replied that she had been stabbed by appellant Sabir Husain. It is clear that Anisa made a statement to three witnesses regarding the circumstances of transaction which resulted in her death and this statement was made without any loss of time. Apparently, she had been stabbed just few seconds before the arrival of witnesses and immediately she named appellant Sabir as assailant. Timing of attack can be established by few things. The FIR itself says that informant Zakir came back from his in-laws home (Sasural) at about 8 pm. This information has been fortified by the evidence of other witnesses. P.W. 1 Abdul Wahid has supported this fact. Timing of attack can be established by few things. The FIR itself says that informant Zakir came back from his in-laws home (Sasural) at about 8 pm. This information has been fortified by the evidence of other witnesses. P.W. 1 Abdul Wahid has supported this fact. However, P.W.2 Bundu at one place told that Zakir came back early from his sasural (in-laws house) but there is no dispute that Zakir was at the residence of Kalwa/Bundu somewhere around 8:30 pm. Even P.W. 2 Bundu has supported this fact. Same fact has been reiterated by P.W. 3 Zakir though with slight difference. He claims that he came from in-laws home (sasural) somewhere around 9 pm. and then spent some time at Bundu's residence (P.W.2) and thereafter came back to his residence after hearing commotion. 27. If we carefully examine the background of these witnesses, it would appear that none of them is highly educated in conventional sense. Murder of wife is not an everyday affair, so we cannot expect each witnesses to give the time of various incident occurred in the rapid succession with mathematical precision. But over all this fact has been established by everybody; that informant Zakir came back from his sasural late in the evening, spent some time at his own residence, then went to the residence of Bundu/Kalwa. P.W. 1 Abdul Wahid and P.W. 2 Bundu have established that there was some altercation between husband, wife and brother. Both of them have heard the information that during day time some dispute occurred between deceased Anisa and accused Sabir. These informations are part of res gestae, therefore, admissible. 28. Now coming again back to the dying declaration of Anisa, it is apparent that information about the dying declaration was enshrined by informant Zakir (P.W. 3) in FIR. The FIR was admittedly lodged by P.W. 3 Zakir. Even in his hostile testimony, he has admitted that report was scribed by one Mohd. Yusuf and later on lodged at police station Seohara. The question is whether P.W. 3 Zakir Husain is right when he says that Police personnel had dictated the content of FIR (Ex Ka-5) to Mohd. Yusuf. The problem with this story is that incident and the timing of FIR are very close i.e. incident occurred somewhere around 9 pm. and by 9:45 pm FIR had been lodged. The question is whether P.W. 3 Zakir Husain is right when he says that Police personnel had dictated the content of FIR (Ex Ka-5) to Mohd. Yusuf. The problem with this story is that incident and the timing of FIR are very close i.e. incident occurred somewhere around 9 pm. and by 9:45 pm FIR had been lodged. In between 45 minutes there was no occasion for the police personnel to arrive at the place of occurrence. Somebody must have been given information to the police. Police could not have dictated the FIR to Mohd. Yusuf without arriving on the spot. Under what circumstances police personnel came on the spot and dictated the FIR with details of events of entire day in precise manner to Mohd. Yusuf? Police personnel could not have been aware of the medical problems of Hanifa (daughter of deceased) or the fact that doctor had prohibited the intake of rice by her. Police personnel would not have been aware of that appellant Sabir brought some rice from place of Bundu; and that Hanifa had eaten that rice. How come police personnel became aware that Habivan, mother of Zakir reprimanded the wife of Zakir (deceased Anisa) on this issue? Even if it is assumed that police personnel introduced the story of assailant/appellant Sabir Husain, killing Anisa, there was no reason for Police to become aware of the fact that Zakir had gone to the residence of Kalwa/Bundu. There are far too many details in the FIR to be known to the Police personnel, especially in the light of the fact that everything from incident to FIR happened within 45 minutes. 29. It is pertinent to point out that evidence of hostile witnesses is not necessarily to be discarded completely. The Apex Court in Devraj Vs. State of Chhattisgarh reported in AIR 2016 SC 3498 held thus:- “16. In a three-Judge bench judgment of this Court in Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 , the witness Jagat Singh was declared hostile. The appellant was convicted under Section 165A IPC. It was contended that the whole case is destroyed since the witness was declared as hostile. In the aforesaid decision the Court held that there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. Following was stated in paragraph 8: “8. The appellant was convicted under Section 165A IPC. It was contended that the whole case is destroyed since the witness was declared as hostile. In the aforesaid decision the Court held that there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. Following was stated in paragraph 8: “8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P., is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under Section 161 IPC. There is, therefore, clear abetment by the appellant of the offence under Section 161 IPC and the ingredients of Section 165-A IPC are established against him.” 17. Another judgment which needs to be noted is Khujji v. State of M.P., (1991) 3 SCC 627 . This Court in the above case held that merely because a witness was declared hostile, his entire evidence cannot be treated as effaced from the record, his testimony, to the extent found reliable, can be acted upon. In paragraph 6 following was observed: “6......The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. In paragraph 6 following was observed: “6......The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 , Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka, (1980) 1 SCC 30 , that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.....” 18. The above propositions have again been reiterated by this Court in Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 , where in paragraph 31 following has been stated: “31. The next aspect which requires to be adverted to is whether testimony of a hostile evidence that has come on record should be relied upon or not. Mr. Jain, learned senior counsel for the appellant would contend that as PW-7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross-examination he has taken the path of prevarication. In Bhagwan Singh V. State of Haryana, (1976) 1 SCC 389 , it has been laid down that even if a witness is characterized has a hostile witness, his evidence is not completely effaced. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence. In Khuji @ Surendra Tiwari V. State of Madhya Pradesh, (1991 ) 3 SCC 627, the Court after referring to the authorities in Bhagwan Singh (supra), Rabindra Kumar Dey V. State of Orissa, (1976) 4 SCC 233 and Syad Akbar V. State of Karnataka, (1980 ) 1 SCC 30, opined that the evidence of such a witness cannot be effaced or washed off the record altogether, but the same can be accepted to the extent it is found to be dependable on a careful scrutiny thereof.” 19. The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross-examination, is fully reliable even though the witness has been declared hostile.” 30. It is therefore, clear that the evidence of witnesses who have been declared hostile can be accepted in part if there are some material on the basis of which the evidence can be corroborated. It is pertinent to point out that evidence of hostile witnesses is not totally effaced or washed off from the face on record and courts are entitled to use the part of the evidence if found trustworthy by the court. Coming back to the facts of the case, we do not believe that FIR was dictated by police personnel as there was no opportunity for them to incorporate so many details in it. FIR was lodged so promptly so as to obviate any possibility of concoction, manipulation and fabrication. 31. The evidence of P.W. 1 Abdul Wahid is very clear. He has narrated the entire evidence in detail. He has stated that first he saw assailant/appellant Sabir Husain running out the house exactly at the time of murder of Anisa. In fact appellant Sabir collided with him. He had very emphatically asserted that he recognized Sabir in the light of battery torch but most important part of the testimony is that in the presence of these two eye witnesses the oral dying declaration was made by deceased Anisa to her husband. In fact appellant Sabir collided with him. He had very emphatically asserted that he recognized Sabir in the light of battery torch but most important part of the testimony is that in the presence of these two eye witnesses the oral dying declaration was made by deceased Anisa to her husband. The evidence of P.W. 1 Abdul Wahid is highly credible, trustworthy and consistent with normal human conduct. P.W. 2 Bundu has also supported the prosecution story at least on first day of his testimony, though later on he was declared hostile. He has reiterated the information about earlier incidents. He has supported P.W. 1 Abdul Wahid in the sense that he had also recognized Sabir while running out of the residence of Zakir. In para no. 2 of his statement, he clearly stated that the person escaping the residence of informant Zakir was appellant Sabir. He further narrated that deceased Anisa made an oral dying declaration in his presence and held appellant Sabir responsible for stabbing her. It is true that on next day this witness resiled from his earlier story but he found it difficult to do so, therefore, he again stated that his earlier story was truthful. In para no.6 of his testimony, he stated that appellant Sabir was named as assailant by deceased Anisa. Later on he stated that he personally did not hear the conversation between husband and wife, merely heard it from the noises made by children. 32. We have no doubt that the evidence given by P.W. 2 Bundu on 20.1.1983 is right one and that something happened during night to make him change the story. But fact of the matter is that even after changing the track, this witness again in para no. 11 of his testimony reiterated that Sabir accused had indeed run away from the spot and that deceased Anisa had named Sabir Husain as assailant. Similarly, P.W. 3 informant Zakir, husband of deceased appears to have developed fondness for his brother assailant/appellant Sabir after sometime and therefore, has resiled from his earlier statement. His earlier statement has been proved and placed on record by the prosecution as Ex. Ka-14. The Trial Judge has very carefully examined the evidence of P.W. 3 Zakir, the informant and found that he was trying to help his brother assailant Sabir. The conclusions of trial judge are reproduced as below:- “22. His earlier statement has been proved and placed on record by the prosecution as Ex. Ka-14. The Trial Judge has very carefully examined the evidence of P.W. 3 Zakir, the informant and found that he was trying to help his brother assailant Sabir. The conclusions of trial judge are reproduced as below:- “22. Perhaps his ego was injured. His brother instead of siding with him in a dispute between his wife and his brother the accused had treated both of them equally. Perhaps he expected that Zakir should have reprimanded his wife only in his presence for the abuses she had hurled upon him and in stead of publicly chastising him he should have chastised him, if at all in private but Zakir did not do so. This was naturally an injury from which the accused suffered. 23. With this motive in mind, the accused chose an opportunity to murder the deceased with a knife when no other male member was present at the house except himself. Even the neighborhood was free from males and all of them had gone towards the house of Bundu, so they could not come to her rescue so easily. The accused found the lady in a hapless and helpless stated and utilized the opportunity of killing her. This in short the summunbonum of the entire dispute in this case and then within few minutes the incident happened and was concluded.” 33. It is pertinent to point out that accused appellant had come to celebrate Eid. Incident occurred on 08.08.1982. Even P.W. 3 informant Zakir has admitted that when he left for his sasural (inlaws home) in the morning, appellant Sabir was present in the house but as soon as the murder of Anisa was committed, appellant Sabir left house and went to Ahmadabad, Gujrat without contacting his brother and any member of his family. He did not even have any conversation with any member of his family. The evidence discloses that despite repeated efforts of police, appellant, Sabir could not be arrested and in fact he fled to Ahmadabad, Gujarat and was arrested from there. P.W. 6 Meer Singh (S.I.) has testified to this fact. His escape from the place of occurrence without any reason is highly suspicious. Fact of the matter is that subsequent conduct of appellant Sabir in the wake of murder of Anisa can be taken into consideration. P.W. 6 Meer Singh (S.I.) has testified to this fact. His escape from the place of occurrence without any reason is highly suspicious. Fact of the matter is that subsequent conduct of appellant Sabir in the wake of murder of Anisa can be taken into consideration. It is not anybody's case that appellant Sabir was not present. He was present through out the day at the residence and when P.W.3 Zakir came in residence between 8-9 pm, deceased Anisa made a complaint against appellant Sabir. The FIR as well as prosecution evidence disclose that informant Zakir scolded both Anisa as well as appellant Sabir. P.W. 3 Zakir was brought to his own residence by Bundu/Kalwa and within this few minutes Anisa was stabbed when no other male member was present in the house. But appellant Sabir was seen by both witnesses, namely, P.W. 1 Abdul Wahid and P.W. 2 Bundu running out of the house of Zakir in a frightened state in the light of battery torch. The lane in which appellant Sabir was running, is shown in the site plan (Ext. Ka-13). This is a small lane which runs north to south and that is why appellant Sabir collided with P.W. 1 Abdul Wahid and P.W.2 Bundu. P.W.1 Abdul Wahid has very simply explained that he did not think much of it because he did not aware of death of Anisa at this point of time nor were they aware of the fact that assailant/appellant had committed murder that is why they did not catch him. P.W.1 Abdul Wahid has very simply explained that he did not think much of it because he did not aware of death of Anisa at this point of time nor were they aware of the fact that assailant/appellant had committed murder that is why they did not catch him. The evidence of P.W. 1, Abdul Wahid in this regard is as follows:- **6-10&15 feuV ge dyok ds ?kj ij jgsA ge ykssxksa us dyok ds ?kj ij gh tkfdj ds ?kj dh rjQ ls gYyk lqukA fQj eSa cqUnw o tkfdj ogka ls mBdj tkfdj ds ?kj dh rjQ dks mlh xyh ds jkLrs ls pysA eSa o cqUnw VkpsZ fy;s FksA ge yksx tkfdj ds edku ds lkeus xyh ij ig¡qp x;sA eqfYte lkfcj gkftj vnkyr vius ?kj ls fudydj ?kcjkgV esa mlh xyh esa gksdj nfD[ku dks HkkxkA mll gekjk dU/kk Hkh fHkM+ x;k FkkA ge yksxksa us VkpZ tykdj [kwc vPNh rjg eqfYteku dks ns[k fy;k FkkA 7- eSa tkfdj o cqUnw vuhlk dh pkjikbZ ds ikl x;s tgka og ckgjh lgu esa pkjikbZ ij ?kk;y iM+h FkhA tkfdj us vuhlk ls iw+Nk fd rqe dks fdlus ekjk gS rks vuhlk us crk;k fd tkfdj eq>s pkdw ekjdj Hkkxk gSA vuhlk dh pksVksa ls [kwu fudy jgk FkkA vuhlk dh pkjikbZ ds ikl ,d pkdw Hkh IkM+h Fkh ftldks eSaus ns[kkA xokg us pkdw ¼ftls lhy [kksy dj fn[kk;k x;k½ ns[kdj dgk fd ;gh pkdw ogka iMk Fkk blij eSVsfj;y ,DthfoV&1 Mkyk x;k blds ckn vuhlk ej x;hA 10-&&&&&&& Jh vCnqy xQ~Qkj }kjk---tkfdj ds ?kj ds lkeus tks xyh gS og esjs ?kj ds if'pe gS mRrj nfD[ku tkrh gSA ;g yxHkx 4 QhV pkSM+h gS A tkfdj dk edku mRrj nfD[ku 8&10 dne yECkk gSA cqUnw dk edku mRrj nfD[ku blls 1&2 dne de yECkk gSA cqUnw ds edku ds nfD[ku mldk lgu gSA ;g lgu edku ds vykok 10&12 dne yECkk gSA cqUnw ds edku esa dqy rhu dejs gSaA ,d igkM+ lkeuk ,d iwjo lkeuk o ,d nfD[ku lkeuk gSA ge lc yksx ?kVuk ls igys iwjc lkeus okys dejs esa pkjikbZ ij cSBs FksA iwjc okys dejs esa ge pkjksa vkneh cSBs Fks vkSj fp[kus dh vkokt lqurs gh ge yksx edku ls ckgj vk, tSls gh ge xyh eas mRrj esa c<+s] eqfYteku mRrj ls nfD[ku dh xyh esa Hkkxrk vk jgk FkkA eSa lcls vkxs Fkk blfy;s lcls igys eqfYte dk dU/kk eq>ls yxkA dU/kk ekjdj og nfD[ku dks HkkxkA tc eSus VkpZ tyk;h rks eq>ls eqfYte 4&5 dne nfD[ku dks Hkkx pqdk Fkk ysfdu p¡wfd ge yksxksa dks ;g irk ugha Fkk fd eqfYte us ,slk dksbZ dk;Z fd;k gS blfy;s geus mls idM+us dk iz;kl ugha fd;kA ;g VkpZ eSaus tyk;h FkhA 11- xyh ls tc tkfdj ds ?kj esa ?kqlus dk ekSdk vk;k rks eSa o cqUnw ihNs gks x;s tkfdj vkxs pyk x;kA tkfdj ls eSa ,d dne ihNs Fkk cqUnw eq>ls ,d dne ihNs FkkA ge rhuksa yxHkx ,d gh lkFk vuhlk dh pkjikbZ ds ikl ig¡qpsA vuhlk pkjikbZ ij ysVh gq;h gkFk iSj ekj jgh FkhA** 34. We have carefully examined all material on record. We believe that Anisa was indeed murdered by appellant Sabir. There is enough evidence on record to establish that Anisa made a dying declaration before her husband and two other witnesses, namely, P.W. 1 Abdul Wahid and P.W.2 Bundu; and that appellant Sabir had indeed stabbed her. We are also convinced that deceased Anisa died on account of this injury. We have carefully taken into consideration the conclusion of P.W. 5 Dr. J.P. Srivastava (Medical Officer) wherein he has given opinion that injury indeed was such that she could survive only upto two hours after receiving the injuries but would retain the capacity to speak till the end. Therefore, it is apparent that deceased was in a position to make statement regarding the assailant and incident. The evidence of P.W. 1 Abdul Wahid, thus finds support from the evidence of P.W. 5 Dr. J.P. Srivastava. P.W.1 Abdul Wahid has clearly stated that Anisa made dying declaration in his presence and we have no reason to doubt his testimony. There is no reason for P.W. 1 Abdul Wahid to lie about the incident. 35. As stated earlier the entire declaration about the causes of death was made by deceased Anisa instantly to her husband and two witnesses. Husband of course has not supported that claim and later on resiled from his stand. But we are convinced that deceased Anisa did made an oral declaration identifying her assailant and this declaration in our opinion is admissible under Section 6 of the Indian Evidence Act as part of res-gestae. The Apex Court in Sukhar Vs. State of Uttar Pradesh (1999) 9 SCC 560 has held that such declarations are in fact admissible under Section 6 of the Evidence Act. The court held thus:- “Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmores Evidence Act reads thus: Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided it is near enough in time to allow the assumption that the exciting influence continued.” 36. Similarly, the Apex Court in Gentela Vijayavardhan Rao and Another Vs. State of Andhra Pradesh (1996) 6 SCC 241 has held thus such statements are admissible under the role of res-gestae. The Court held thus:- “The principle or law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English Law. The essence of the doctrine is that fact which, though not in issue, is so connected with the fact in issue "as lo form part of the same transaction-becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or atleast immediately thereafter.” 37. In the light of aforesaid discussion the stated statement of deceased Anisa made in the wake of attack on her person is admissible under Section 6 of Evidence Act. 38. We have narrated the sequence of incident and the manner in which such statement was made. We believe that Trial Judge rightly relied on this statement. We are in complete agreement with the conclusion of Trial Judge on this score. 39. 38. We have narrated the sequence of incident and the manner in which such statement was made. We believe that Trial Judge rightly relied on this statement. We are in complete agreement with the conclusion of Trial Judge on this score. 39. Trial Judge has clearly concluded that probably P.W. 3 Zakir Husain was not prepared to loose his real brother after the death of his wife and that is why he has resiled from his earlier story. We also believe that the arrival of Police at the place of occurrence was made possible by the FIR filed by informant Zakir Husain; and that there was no reason for Police to arrive to the place of occurrence without prior information. 40. We therefore, hold that deceased Anisa was indeed done to death by appellant Sabir but the question needs to be answered whether this act of appellant Sabir was result of premeditation on his part, or the incident occurred suddenly in the heat of passion. The prosecution story itself indicates that appellant Sabir Husain was the brother-in-law of deceased Anisa and had came from Gujrat to celebrate Eid. Record further reveals that appellant Sabir was living together with the family of informant Zakir. This fact has been accepted even by hostile witness, Zakir (P.W.3). If the entire allegations and evidence in support thereof is considered in a chronological order, it would reveal that appellant Sabir brought some rice from the residence of Bundu (P.W. 2). Three years old niece Hanifa insisted on eating that rice which was prohibited under medical advice. Appellant Sabir gave some rice to his niece Hanifa whereupon the mother-in-law Habiban reprimanded her daughter-in-law deceased Anisa. Deceased Anisa angrily retorted saying that appellant Sabir was responsible for this act. She used abusive language for appellant Sabir which infuriated appellant who slapped deceased Anisa. This matter somehow was managed at that point of time perhaps because informant Zakir, the husband of deceased Anisa and brother of appellant had gone to visit in laws home in village Sahaspur. 41. In the late evening, after arrival of informant Zakir, the dispute again erupted. Indignant Anisa wife of Zakir poured everything to her husband. Informant Zakir initially rebuked appellant Sabir but Anisa again used some abusive language against Sabir whereupon informant Zakir slapped his furious wife Anisa. 41. In the late evening, after arrival of informant Zakir, the dispute again erupted. Indignant Anisa wife of Zakir poured everything to her husband. Informant Zakir initially rebuked appellant Sabir but Anisa again used some abusive language against Sabir whereupon informant Zakir slapped his furious wife Anisa. This entire dispute was pacified by neighbours especially Kalwa who took informant Zakir to his residence. Apparently the time was 9 pm in the night. 42. During the period of these few minutes, appellant Sabir stabbed Anisa and thereafter fled from the spot and ultimately reached Gujrat without talking anyone in his family. 43. The record reveals that appellant Sabir is not a criminal; and that he acted in the heat of passion. The fact that knife was used only once indicates his intention. The evidence of P.W. 5 Dr. J.P. Srivastava indicates that knife was used only once which created serious wound and resulted in the unfortunate death of Anisa. 44. The entire story and record corroborate this conclusion that the incident occurred due to sudden provocation apparently on the part of deceased herself. It is pertinent to point out that the single blow apparently was result of anger and not of well thought out plan of murder. It is pertinent to point out that at the time of incident only appellant Sabir and deceased Anisa were present inside the house along with one infant. No male member was present inside the house and yet appellant did not use this opportunity to repeatedly attack Anisa. He did not act in a cruel manner. Therefore, we believe that the offence committed by accused appellant Sabir falls under the exception 4 of Section 300 IPC and his act is not punishable under Section 302 IPC. The Apex Court in Murlidhar Shivram Patekar and another Vs. State of Maharashtra reported in 2015 Cr.L.J. 139 has held thus:- “19. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 of Section 300, IPC. “In the case of Surinder Kumar (supra), this Court has held as under:- “7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv)The assailant had not taken any undue advantage or acted in a cruel manner. “In the case of Surinder Kumar (supra), this Court has held as under:- “7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv)The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.” (emphasis supplied) Further in the case of Arumugam v. State,[2] in support of the proposition of law that under what circumstances Exception 4 to Section 300, IPC can be invoked if death is caused, it has been explained as under:- “18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.” Further in the case of Satish Narayan Sawant v. State of Goa, [3] this Court has held as under:- “24. …….Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.” 45. Coming back to the facts of the present case, it is evident that appellant Sabir did not act in cruel manner. Record clearly establishes that there was prior altercation between parties without any previous animosity. Altercation in fact erupted suddenly due to normal domestic quarrel. Both provocation and actual incident occurred at the spur of moment. Therefore, we believe that present case does not fall within definition of Section 302 IPC but it is a case within the domain of Section 304 part II IPC. Evidently, Section 304 part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. In our view if there is an intent and knowledge then the case would fall within the domain of Section 304 part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would come in the purview of section 304 Part II. In our view if there is an intent and knowledge then the case would fall within the domain of Section 304 part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would come in the purview of section 304 Part II. Considering all facts and circumstances, we believe that appellant Sabir is a guilty of offence under Section 304 Part II. 46. In view of the above, the appeal is partly allowed. Accordingly, the judgment and order dated 25.01.1983 passed by the then Special Judge/Additional Sessions Judge, Bijnor in Sessions Trial No. 316/1982 (State Vs. Sabbir Husain) arising out of Crime No.141 of 1982 under Section 302 IPC, Police Station (P.S.) Seohara district Bijnor is set aside. We now hold appellant Sabir guilty of offence under Section 304 Part II IPC. We believe the sentence of imprisonment for 8 years and a fine of Rs.100,000/-(one lac) would meet the ends of justice. In default of payment of fine appellant Sabir shall have to undergo a further imprisonment of two years. 47. The appeal is disposed off in the above said terms. Appellant is directed to surrender before the concerned court within 15 days. His bail is cancelled and sureties discharged. 48. Office is directed to certify the judgment to the concerned court within 15 days through Sessions Judge, Bijnor. The court concerned shall report compliance of this judgment within one month thereafter.