JUDGMENT : 1. Appellant has filed this appeal against the judgment dated 28.02.1995 passed by the Court of IIIrd Additional Sessions Judge, Hoshangabad in Sessions Trial No.298/1993. The trial Court held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code with fine of Rs.5,000/- and awarded sentence of life. 2. Prosecution story, in brief is that, deceased Yogesh had gone to attend coaching class on the date of incident i.e. on 24.09.1993, one boy came to him and informed that appellant had come to meet him. Thereafter, deceased came outside of the class and appellant and one boy asked Yogesh [since deceased] that what had happened in the night. Deceased replied that there was a talk with the mother of appellant. Thereafter, appellant asked which is that girl. Deceased replied that what you are thinking is not proper. Thereafter, appellant inflicted injuries on the person of the deceased by knife and he ran away from the spot. Deceased was admitted in the hospital where he was died. Appellant killed the deceased because deceased was teasing his sister. After lodging report, police conducted investigation and filed charge-sheet. During trial, appellant abjured his guilt and pleaded innocence. Trial Court held appellant guilty for commission of offence of murder and awarded punishment of life. 3. Learned Senior counsel appearing on behalf of the appellant has contended that there is no reliable evidence to convict the appellant for commission of offence of murder. Trial Court committed an error in placing reliance on the dying declaration of the deceased. It is further submitted by the Senior counsel that in alternate, even if the evidence of the prosecution be accepted as it is, the offence committed by the appellant would fall under Section 304 Part-I of IPC. In support of aforesaid contention, learned Senior counsel placed reliance on the judgment of the apex Court in the case of Arjun and another vs. State of Chhattisgarh, reported in (2017) 3 SCC 247 . 4. Trial Court placed reliance on the dying declaration of the deceased which was recorded by the Executive Magistrate and the evidence of (PW-3) Rajesh Kanojia. 5. Sandeep Kumar Tiwari (PW-1) deposed that at around 9.30 in the morning, a boy came to the class and deceased had gone with that boy outside of the class and after 10 minutes, I heard sound 'killed me' 'killed me'. 5. Sandeep Kumar Tiwari (PW-1) deposed that at around 9.30 in the morning, a boy came to the class and deceased had gone with that boy outside of the class and after 10 minutes, I heard sound 'killed me' 'killed me'. Thereafter, I and other boys reached at the place of the incident. We noticed that deceased-Yogesh was laying on the spot. Blood was oozing from his chest. He was declared hostile. 6. (PW-2) Sanjay Tomar, deposed the same facts that one boy came to call deceased and deceased went from the class and after 10 minutes, we came to know that there was a quarrel and when we went there, he found that deceased was found unconscious on the spot. 7. (PW-3) Rajesh Kanojia deposed that deceased was my friend. He was taking coaching class. On 24.9.1993, at around 9 O'clock in the morning when I came down after attaining coaching, I noticed that present appellant had been quarreling with the deceased. Thereafter, I went to call Sandeep Tiwari Sir, when I returned back, I noticed that deceased was laying on the earth. Blood was oozing from his body. Appellant had ran away from the spot. Thereafter, I and mother of the deceased had taken the deceased to the Hospital where deceased told the mother that appellant had killed him. He was serious. Thereafter, I came to my house. 8. (PW-4) Chandresh declared hostile. (PW-5) Balla is the witness of some seizure. (PW-7) Rajendra Singh deposed that I received information at my house that deceased was killed by the appellant and other boys. Police prepared the spot map (Ex.P-7) and I signed the same. 9. (PW-8) Bhawani Prasad, deposed that I went to the hospital. (PW-9) Ashok Kumar deposed that he came to know that deceased was killed by the appellant. (PW-13) Om Prakash Bhatt, Revenue Inspector deposed that I prepared spot map which is [Ex-14] and I signed the same. 10. (PW-11) Dr. Arun Kumar, deposed that I examined the deceased. It was told to me that somebody had inflicted injuries by knife to the deceased. I noticed two stab wounds on the person of the body of the deceased. I advised X-ray. 11. (PW-10) Dr. M.L. Batra performed the post-mortem of the deceased. He deposed that I noticed following injuries on the person of the deceased. “1. It was told to me that somebody had inflicted injuries by knife to the deceased. I noticed two stab wounds on the person of the body of the deceased. I advised X-ray. 11. (PW-10) Dr. M.L. Batra performed the post-mortem of the deceased. He deposed that I noticed following injuries on the person of the deceased. “1. One stab wound on the chest close to left border of sternum in 5th inter-costal space 1 ½ cm long ½ cm wide in center oval fish mouth shape margines clean cut 4 cm deep clotted blood that around. 2. One stab wound right side of the chest near 9th intercostal space 1 ½ cm long ½ cm wide oval fish mouth shape clean cut margine 3 cm deep clotted blood present around it.” He further deposed that there were injuries on the ventricle of heart and liver. Deceased was died due to injuries suffered by him. Injuries were ante-mortem in nature. Injuries were caused by sharp edged weapon, it could be caused by knife. 12. (PW-15) Antarsingh Chouhan, deposed that on 24.09.1993, I was posted as Tahsildar. Police Station Itarsi send a request to me to record dying declaration of Yogesh S/o Ramgopal Sopara, I went to Janseva Rugnalaya Itarsi where Yogesh (since deceased) was in a fit condition to give dying declaration. I recorded dying declaration of deceased which is (Ex-P16). Dying declaration was recorded at 10 O'clock in the morning on 24.09.1993, it ended after 18 minutes. Yogesh (since deceased) stated in his dying declaration that appellant-Sanjeev had inflicted injuries on him by Gupti. He did not tell me about the cause of incident. 13. (PW-16) Sanjay Mehto, deposed that I was attending coaching class and I came to know about the quarrel, however, I did not know who had killed the deceased. 14. (PW-17) Khemaraj Incharge Station House Officer, deposed that on 24.09.1993, I received a telephone that somebody had inflicted injury by knife to Yogesh. I went to the hospital where Yogesh was admitted thereafter, on the information of Yogesh, I recorded Dehati Nalishi which is (Ex.P-18) and I signed the same. He further deposed that Yogesh told me that he had gone to attend his tuition class where a boy came to call him. I came outside of the class and I was inflicted injuries by the appellant. Teachers and students had taken me to the Hospital. He further deposed that Yogesh told me that he had gone to attend his tuition class where a boy came to call him. I came outside of the class and I was inflicted injuries by the appellant. Teachers and students had taken me to the Hospital. I recorded statement of deceased (Ex-P-16). Thereafter, I registered FIR vide [Ex.P-19] and I signed the same. I prepared the Panchnama of dead body of the deceased vide (Ex-P-9) I prepared the spot map which is (Ex.P-6). Patwari prepared the spot map which is (Ex.P-14). I seized plain earth and red earth from the spot on 24.09.1993 vide seizure memo [Ex-P-5] and I signed the same. Appellant was arrested vide arrest memo [Ex.P-21]. On his memorandum (Ex-P-3), a knife was seized vide seizure memo (Ex.P-4) I signed both the documents. I send the seized articles to FSL. I recorded statements of Sanjiv Kumar, Rajeshwar, Yogesh, Sanjay Mehto, Narmada Prasad Mehto, Sanjay Tomar, Roshanlal, Ramesh and Shankerlal. Thereafter, charge-sheet was filed. 15. It is well settled principle of law that a dying declaration is admissible in evidence and conviction can be based on dying declaration if it inspires confidence of the Court. The Apex Court in the case of Pawan Kumar vs. State of Himachal Pradesh, (2017) 7 SCC 780 has held as under in regard to admissibility of dying declaration: 27. In Atbir v. Government of NCT of Delhi (2010) 9 SCC 1 , the Court, after noting earlier judgments, has laid the following guidelines with regard to admissibility of the dying declaration:- “22. The analysis of the above decisions clearly shows that: (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” 28. Recently, in Gulzari Lal (supra), the Court confirmed the conviction by placing reliance on the statement made by the deceased and recorded by the Head Constable on the basis of the principles stated in Laxman (supra). The analysis in the said case is as follows:- “23. In reference to the position of law laid down by this Court, we find no reason to question the reliability of the dying declaration of the deceased for the reason that at the time of recording his statement by the Head Constable Manphool Singh (PW 7), he was found to be mentally fit to give his statement regarding the occurrence. Further, evidence of Head Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been accepted by the courts below. The view taken by the High Court does not suffer from any infirmity and the same is in order. 24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the un-shattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11).” 29. 24. The conviction by the High Court was based not only on the statements made by Maha Singh (deceased) but also on the un-shattered testimony of the eyewitness Dariya Singh (PW 1) and the statement of the independent witness Rajinder Singh (PW 11).” 29. Tested on the anvil of the aforesaid authorities, we find that there is no reason to disregard the dying declaration. The Head Constable has recorded it as narrated by the deceased and the deceased has also written few words about the accused. The same has been recorded in presence of the doctor, PW-10, who had appended his signature. A certificate of fitness is not the requirement of law. The trial court has been swayed away by the burn injuries. It is worthy to note that there cannot be an absolute rule that a person who has suffered 80% burn injuries cannot give a dying declaration. In Vijay Pal v. State (Government of NCT of Delhi (2015) 4 SCC 749 ), the Court repelled the submission with regard to dying declaration made by the deceased who had sustained 100% burn injuries stating that:- “22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW 1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect. 23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.” 16. In the present case, dying declaration of deceased was recorded by the Executive Magistrate. Dying declaration is [Ex-P16]. In the aforesaid dying declaration, deceased stated that appellant had inflicted injuries to him by Gupti and when the Gupti bend, he had taken knife from another person and inflicted blows by knife. Dr. has certified that deceased was fit to give dying declaration. (Ex-P-18) is statement of the deceased, it was recorded by the Investigating Officer. There is a signature of the deceased in the statement. It is mentioned in the Dehati Nalishi that when I was attending a class, one boy came to me and informed me that Jai Kishore is calling me. I came outside of the class. Appellant Sanjeev was there. He asked me what had happened in the night. I told him that there was a talk with your mother and you are thinking otherwise. Thereafter, he asked me which is that girl. I told him that your thinking is not proper and thereafter, appellant had inflicted injuries on my stomach and chest, I fell down and my friends had taken me to the hospital. Appellant had inflicted injuries by knife. He told me that I was teasing his sister. 17. There is dying declaration of the deceased [Ex-P-16], it was recorded by the Executive Magistrate. There is a merg based on the statements of deceased. There is a signature of the deceased on merg (Ex-P-18) Investigating Officer verified the same. Apart from this, (PW-3) Rajesh Kanojia who was friend of the deceased and present at the time of incident and is natural witness, deposed that he had seen that there was a quarrel between the appellant and deceased and when he returned back, appellant was running away from the spot. Apart from this, (PW-3) Rajesh Kanojia who was friend of the deceased and present at the time of incident and is natural witness, deposed that he had seen that there was a quarrel between the appellant and deceased and when he returned back, appellant was running away from the spot. There is evidence of (PW-3) which proves the fact that appellant was present on the spot at the time of incident, he was quarreling with the deceased. He further deposed that he had seen that the appellant ran away from the spot. 18. (PW-11) Dr. Arun Kumar, who performed post-mortem of the deceased deposed that he had noticed two stab wounds on the person of deceased. Those injuries were sufficient to cause death of deceased. The Dehati Nalishi was registered soon after the incident i.e. within 15 minutes of the incident. It was signed by the deceased himself. 19. On the basis of above evidence, in our opinion, the trial Court has rightly held that the appellant had killed the deceased-Yogesh. 20. Now what offence the appellant had committed. The apex Court in the case of Arjun and another vs. State of Chhattisgarh (2017) 3 SCC 247 has held as under:- “19. The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC. 20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217 , it has been explained 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 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…………..” 21. Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 , 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:- “9. ……. “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. 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 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’.” 22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage” or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.” The apex Court has further held that in order to invoke explanation 4 of Section 300 of the IPC., the Court must be satisfied that it was a sudden fight. There was no premeditation. The act was done in a heat of passion. Assailant had not taken any undue advantage or acted in cruel manner. 21. As per dying declaration of the deceased (Ex-P-16), appellant and one boy were present on the spot. He was called by another boy. Appellant asked the deceased that what had happened in the night. Deceased replied that there was a talk with the mother of the appellant thereafter, appellant enquired who is that girl and then, appellant had inflicted blows by Gupti which was bent and then he had taken knife from another boy and inflicted blows. There is no injury of Gupti on the person of the deceased. From the dying declaration, it can safely be held that the appellant had taken out knife from another boy and he had inflicted two blows on the deceased. This fact has established that there was no premeditation. The act was done in a heat of passion as the appellant had apprehension that the deceased was teasing his sister. From the dying declaration, it can safely be held that the appellant had taken out knife from another boy and he had inflicted two blows on the deceased. This fact has established that there was no premeditation. The act was done in a heat of passion as the appellant had apprehension that the deceased was teasing his sister. Hence, it cannot be said that he acted in a cruel manner. 22. In view of the aforesaid, in our opinion, the offence committed by the appellant would fall under Section 304 Part-I of the IPC. 23. Consequently, the appeal filed by the appellant is partly allowed. His conviction and Sentence awarded by the trial Court under Section 302 of IPC is hereby set aside. Appellant is convicted for commission of offence punishable under Section 304 Part-I of IPC. As per record, appellant was in jail from 24.09.1993 to 11.02.2002. He completed jail sentence of 10 years including remission hence, the appellant awarded a sentence as already undergone. Appellant is on bail, his bail bonds are hereby discharged.