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2018 DIGILAW 431 (KAR)

S. L. Gopala S/o Lakkegowda v. State of Karnataka

2018-03-23

K.SOMASHEKAR

body2018
JUDGMENT : K. SOMASHEKAR, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence passed by the Presiding Officer, Fast Track Court-1, Mandya in S.C. No. 05/2008 dated 27.04.2010/29.04.2010 sentencing the accused to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 15,000/- and in default of payment of fine the accused was sentenced to undergo further imprisonment of one year for the offence punishable under Section 304 Part I of IPC. The same has been challenged in this appeal by urging various grounds. 2. The brief facts of the case of the prosecution are as under: On filing of the complaint by the complainant PW-2, a crime came to be registered against the accused wherein it is alleged that on 07.09.2017 at about 7.30 p.m. while the complainant was in his house, he received a telephone call from one Kumar son of Rudraiah of Manikanahalli Village stating that near the lands of Puttegowda of Borapur, Puttegowda was lying down. Then the complainant along with his brother Gowdaiah went to the place in a motor cycle. There, on the tank bund area, they saw the said Puttegowda lying and his clothes covered with soil and there was a mark of assault on his right arm and left leg, oozing blood. On enquiring about the injuries, Putteogwoda informed him that at about 6.00 p.m. one Gopala @ Gopi assaulted him with means of iron spade. At that time, there were no other persons at the place of occurrence. Cycle belonging to Puttetgowda was also near the place of occurrence. Immediately, complainant and PW-3 went to Manikanahalli by motorcycle and took the autorickshaw of Kumar and took Putegowda in the auto to Kikkeri Government Hospital at about 8.45 p.m. but the doctor was not present. Therefore, they have secured one of the staff nurse of that hospital. She examined Putteogwda and declared that he was brought dead. 3. There was a land dispute between Puttegowda and Gopal @ Gopi. In that dispute, the judgment came in favour of Puttegowda. For that reason the accused committed murder of Puttegowda. On the basis of the said complaint a case was registered against the accused for the offence punishable under Section302 of IPC. 3. There was a land dispute between Puttegowda and Gopal @ Gopi. In that dispute, the judgment came in favour of Puttegowda. For that reason the accused committed murder of Puttegowda. On the basis of the said complaint a case was registered against the accused for the offence punishable under Section302 of IPC. The trial court framed charges against the accused under Section 302 of IPC wherein accused pleaded not guilty and claims to be tried. 4. To prove its case, the prosecution in all examined 25 witnesses as PWs. 1 to 25, got marked 34 documents as per Exs. P1 to P34 and got marked MOs. 1 to 9. Subsequent to closure of the prosecution evidence the statement of the accused under Section 313 Cr.P.C. has been recorded and accused denied all the incriminating circumstances appearing against him in the evidence of prosecution. The accused did not come forward to lead defence evidence as contemplated in law. 5. Thereafter, on hearing the arguments advanced by the prosecution and counsel for the accused and on evaluating the entire evidence which is placed by the prosecution the trial court held the accused guilty of the offence punishable under Section 304 Part I of IPC and convicted the accused with the aforesaid sentence. 6. I have heard learned counsel for the appellantaccused and learned Government Pleader for the State. 7. Learned counsel for the appellant has taken me through the entire evidence of the prosecution put forth for proving the guilt against the accused and contended that the trial court has committed an error in convicting the accused for the offence punishable under Section 304 Part I of IPC as the prosecution did not place any cogent evidence to prove that the appellant-accused had committed murder of Putteogwoda and also caused injuries to him by means of iron spade. 8. It is contended that there is no eyewitness to the incident and the entire case depends upon the oral dying declaration of injured person in the presence of PWs. 2 and 3. Even-though PW-3 did not support the case of the prosecution, the trial court held that there is a corroboration of evidence of PW-2 and PW-3, which is unsustainable in law. 9. It is further contended that the trial court has not taken into consideration the evidence of PW-17 in proper perspective. 2 and 3. Even-though PW-3 did not support the case of the prosecution, the trial court held that there is a corroboration of evidence of PW-2 and PW-3, which is unsustainable in law. 9. It is further contended that the trial court has not taken into consideration the evidence of PW-17 in proper perspective. PW-17 doctor in his evidence has stated that the injury may be due to a hard and blunt force impact but in his cross-examination he has stated that the injury might have been caused by fall on rough surface and in fact the deceased was found lying on bund of Hemavathi river bank unconsciously and by the side bicycle also found lying, the injuries sustained might have been caused by fall from the cycle. The trial court has not appreciated the said evidence properly and held that the death is caused due to assault by using iron spade. 10. It is further contended that the trial court has erred in not taking any lenient view by considering the age of the appellant-accused and also the injuries sustained by the injured are all on non-vital part of the body and at most the offences constitute under Sections 325 or 326 and not under Section 304 Part I of IPC. This aspect has not at all been considered by the trial court. 11. In support of his case, the learned counsel for the appellant has relied on the judgment of Hon’ble Supreme Court in the case of DHANNA vs. STATE OF M.P. AIR 1996 SC 2478 wherein it is held that though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind that there is a general presumption in favour of the innocence of the person accused in criminal case and that presumption is only strengthened by the acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind that there is a general presumption in favour of the innocence of the person accused in criminal case and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him he would retain that benefit in the appellate Court also. Thus the appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. In the case on hand deceased Puttegowda has given oral dying declaration before PW-2 and PW-3 regarding the assault made by the accused. But PW-3 did not support the case of the prosecution. But the trial court has believed the version of PW-2 and convicted the accused. 12. Nextly, he relied on the judgment of the Hon’ble Supreme Court in the case of HEIKRUJAM CHAOBA SINGH vs. STATE OF MANIPUR, AIR 2000 SC 59 wherein it is held that an oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. In the case on hand, even-though the presence of PWs. 2 and 3 at the time of oral dying declaration is recorded, but PW-3 has not stated anything about the oral dying declaration. It is only PW-2, who has given the complaint, has stated about the oral dying declaration given by the deceased. That itself cannot be taken into consideration as the other person who was also with PW-3 has not stated anything about the oral dying declaration. Hence, the trial court is not justified in taking into consideration the oral dying declaration stated by PW-2 without examining the same in proper perspective. 13. That itself cannot be taken into consideration as the other person who was also with PW-3 has not stated anything about the oral dying declaration. Hence, the trial court is not justified in taking into consideration the oral dying declaration stated by PW-2 without examining the same in proper perspective. 13. Lastly, he relied on the judgment of the Hon’ble Supreme Court in the case of MOHANLAL GANGARAM GEHANI vs. STATE OF MAHARASHTRA, AIR 1982 SC 839 wherein it is held that Section 3 of the Evidence Act regarding identification of accused, victim not knowing accused prior to occurrence. The victim stating name of particular person as his assailant to the doctor who examined him and subsequently giving another person’s name as his assailant. In the case on hand PWs. 2 and 3 before whom oral dying declaration has been given, but PW-3 did not support the case of the prosecution and he has not stated anything about the oral dying declaration. But the trial court believing the version of PW-2 about the oral dying declaration, convicted the accused. Therefore, he contends that the trial court has not established the guilt against the accused. Therefore it requires the intervention of this court by setting aside the impugned judgment and acquitting the accused of the offence punishable under Section 304 Part I of IPC. 14. Per contra, learned Government Pleader appearing for the State supports the judgment passed by the trial court. He has taken me through the evidence of PW-.2 who has filed the complaint as per Ex.P1. He states in his evidence that deceased Puttegowda has given oral dying declaration before him in the presence of PW-3. In the oral dying declaration it is stated that accused took up a quarrel with the deceased Puttegowda over a land property dispute and assaulted him by means of MO8 spade and MO9 iron rod and caused injuries over his person as indicated at Ex.P23. In Ex.P23 the doctor who has conducted the postmortem over the body of the deceased has opined that the death is due to shock and hemorrhage as a result of injury sustained by a hard and blunt force impact. 15. In Ex.P23 the doctor who has conducted the postmortem over the body of the deceased has opined that the death is due to shock and hemorrhage as a result of injury sustained by a hard and blunt force impact. 15. PW-19 Nanjegowda who has first seen the deceased Puttegowda lying down in his land, in his evidence has stated that about 2 years back when he was coming from the land in evening time he saw Puttegowda lying down on the road near tank bund and his cycle was also fallen there, he was found bleeding on his left leg and his clothes were covered with mud and he was suffering from pain and crying for help and when he saw PW-19, he asked him to inform the same over phone to Manjanna and Gowdappa. Hence, PW-19 on going to his village told Kumar S/o Rudranna to inform the same to anybody. Hence, learned Government Pleader submits that the evidence of PW-2 corroborates with the evidence of PW-19 to prove the charges against the deceased. Therefore, the learned Government Pleader submits that the trial court after thoroughly appreciating the evidence on record and considering the materials placed on record in proper perspective, convicted the accused for the offence punishable under Section 304 Part I of IPC. The said reasoning given is on consideration of the material evidence and documents on record and interference by this Court is not called for and prays for dismissal of the appeal. 16. On hearing the counsel for the appellant and learned Government Pleader for the State, the point that arises for consideration in this appeal is: “Whether the Trial Court is justified in convicting the accused for the offence punishable under Section 304 Part I of IPC? 17. On hearing the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record it is to be seen that PW-1 is the staff nurse of Kikkeri Government Hospital. She states in her evidence that on 7.9.2007 at about 8.45 p.m. one Manjunath PW-2 came there and asked for the doctor. Since the doctor was not at the hospital, she only went to examine the patient and on examination she found that the patient brought dead to the hospital and Manjunath went from there to give complaint. 18. PW-2 is the complainant in this case. Since the doctor was not at the hospital, she only went to examine the patient and on examination she found that the patient brought dead to the hospital and Manjunath went from there to give complaint. 18. PW-2 is the complainant in this case. He states in his evidence that on 07.09.2007 at about 7.30 p.m. one Kumar called him through telephone and said that one Puttegowda of Borapura lying on the road in his land near tank bund area and asked him to go there. Then immediately, PW-2 along with his brother PW-3 went to the place of occurrence in a motor cycle. At that time PWs. 2 and 3 saw the injured Puttegowda on the Left Tank bund area of Hemavathi river. Puttegowda’s clothes were all covered with mud, there was oozing of blood on the right arm and left leg of the injured Puttegowda. When PW-2 enquired Puttegowda the reason, he said that at about 6.00 p.m. one Gopal @ Gopi came there and assaulted him with spade and iron rod. At that time, PW-3 was also there. PW-2 stated that the cycle belonging to Puttegowda was lying nearby. Then, PWs. 2 and 3 went to Manikanahalli and brought Kumar’s auto with them and took Puttegowda to the Kikkeri Hospital. At about 8.45 p.m. when they went to Kikkeri Government Hospital doctor was not there and the staff nurse who was on duty came there and examined Puttegowda and declared him brought dead. 19. PW-2 also states in his evidence that there is quarrel between deceased Puttegowda and accused over the land and the case pending in court was decided in favour of Puttegowda. PW-2 immediately went to the Police station and lodged a complaint as per Ezx.P1. 20. PW-3 Gowdaiah is the brother of PW-2. In his evidence he stated that he does not know as to how Puttegowda died and he has not seen anything and he has not gone with PW-2 and also not seen the injured Puttegowda. He also denied the suggestion that Puttegowda was assaulted by accused with spade and iron rod and that Puttegowda gave oral dying declaration before PWs. 2 and 3 and that he accompanied PW-2 to take the injured Puttegowda to the hospital. 21. He also denied the suggestion that Puttegowda was assaulted by accused with spade and iron rod and that Puttegowda gave oral dying declaration before PWs. 2 and 3 and that he accompanied PW-2 to take the injured Puttegowda to the hospital. 21. PW-4 Somegowda states in his evidence that he does not know who Puttegowda is and that he does not know about the accused person also. He states that he has not met Manjegowda regarding the murder of Puttegowda. He also denied the suggestion that he saw the accused assaulting Puttegowda with spade and iron rod in regard to some quarrel over the land. 22. PW-5 Kumar in his evidence states that he does not know deceased Puttegowda, he has not seen Puttegowda lying down near his land and he also does not know that Puttegowda was taken to Kikkeri Hospital. He denied the suggestion that he had informed PW-2 over phone about Putegowda lying down near his land and that he was injured. 23. PW-6 M.B. Kumar in his evidence states that he know PWs.2, 3 and 5 and he does not know deceased Puttegowda and also accused. He drives auto between Kikkeri and Manikanahalli from morning 8 till evening 6. He denies the suggestion that it is in his auto PWs. 2 and 3 taken deceased Puttegowda to Kikkeri Government Hospital. 24. PW-7 Nanjundappa states in his evidence that he does not know the deceased Puttegowda and also accused. Only on the order of the police he came to the court. He denied the suggestion that on 07.09.2007 he saw Puttegowda and Gopala were quarrelling and a case between both of them was pending in the court and the judgment came in favour of Puttegowda. 25. PW-8 Shivanna states in his evidence that the land belonging to deceased Puttegowda is besides his land and other side is the land belonging to accused Gopala. He states that he does not know about the dispute pending between deceased and accused and he has no knowledge about the quarrel between accused and the deceased and also about the judgment being made in favour of the deceased Puttegowda. He denied the suggestion that he had knowledge about the judgment being made in favour of deceased Puttegowda and there was a quarrel between accused and the deceased and that accused assaulted deceased with spade and iron rod. 26. He denied the suggestion that he had knowledge about the judgment being made in favour of deceased Puttegowda and there was a quarrel between accused and the deceased and that accused assaulted deceased with spade and iron rod. 26. PW-9 Boregowda in his evidence states that he knows Puttegowda and he saw the dead-body of Puttegowda at K.R. Hospital. He saw the blood clot on the right arm of deceased and also two legs below knee and left arm. He signed the mahazar at Ex.P9 as a panch witness. 27. PW-10 Devarasegowda states in his evidence that he know deceased Puttegowda and also accused Gopala but he has no knowledge about the death of Puttegowda. In his cross cross-examination he denied the fact that he saw the dead-body of Puttegowda at K.R. Hospital and saw that there was a blood clot at both arms and both legs below knee. He also denied the fact that he came to know that Gopala had quarreled with Puttegowda and murdered him. 28. PW-11 Devarasegowda states in his evidence that he knows the deceased Puttegowda and also accused Gopala. He is a panch witness for the spot mahazar at Ex.P11 and seizure mahazars at Exs.P13 and P17. 29. PW-12 R.Chidananada in his evidence states that he was working as junior Engineer of PWD Department, K.R. Pet, Mandya District. As per the request of the Investigating Officer he visited the place of occurrence and drawn a sketch of the place as per Ex.P18. 30. PW-13 Raghurajasetty states in his evidence that he was working in the Taluk Officer at K.R. Pet. As per the directions of the PSI of K.R. Pet Police Station RTC of Sy. No. 19:57/P1 measuring 10 guntas has been issued as per P19. 31. PW-14 Shankaregowda states in his evidence that he was working in K.R. Pet Taluk Office as Surveyor. As per the application made by deceased Puttegowda to the Taluk office he went to the spot on 30.08.2006 for conducing survey in the land. At that time and place deceased Puttegowda and Nanjegowda and their children were present and they requested that since a case is pending before the Pandavapura Court, survey may not be conducted. But on 27.02.2007 deceased Puttegowda again gave another application requesting that survey may be conducted. At that time and place deceased Puttegowda and Nanjegowda and their children were present and they requested that since a case is pending before the Pandavapura Court, survey may not be conducted. But on 27.02.2007 deceased Puttegowda again gave another application requesting that survey may be conducted. Again, PW-14 after giving notice went to the spot on 04.09.2007 for conducting survey and after survey Puttegowda marked his land. 32. PW-15 K.R. Chandru in his evidence has stated that he know deceased Puttegowda and he also know the accused. About 1 ½ years back when he was in Kikkeri he saw one police jeep and in the jeep accused was there. Police asked him to accompany them for conducting mahazar. Accused taken them to the place of occurrence wherein police have conducted the spot mahazar as per Ex.P11 and accused has taken them near pumpset house and from that house he brought MO8 spade and MO9 iron rod and drawn mahazar as per Ex.P13. This evidence is the panch witness for mahazars at Exs. P11 and P13. 33. PW-17 Dr. G. Balakrishna is the medical officer of K.R. Pet Government Hospital who has conducted the postmortem over the dead-body of Puttetgowda. He has deposed in his evidence that on 08.09.2007 he has conducted postmortem over the body of Puttegowda. On examination of the dead-body he found the injuries as (i) a punctured wound 2 cm. x 1 cm. present over the lateral aspect of right elbow; (ii) a lacerated injury 3 cm x 1.2 cm. present over the anterior aspect of upper 1/3rd of left tibia; (iii) an abrasion 1 cm. x ½ cm. present over lower 1/3rd of left tibia; (iv) a huge contusion 19 cms. X 17 cms. Present over the lateral anterior, medical and posterior aspect of right upper arm, on dissection huge blood clot 29 cm. x 14 cm. present, brachia artery was ruptured, surrounding muscles and soft tissues were torn. The doctor has opined that the death was due to shock and hemorrhage as a result of injury sustained by a hard and blunt force impact. He has issued the postmortem report as per Ex.P23. 34. It is in his evidence that on 17.09.2007 he received a sealed bundle from the Investigating Officer. The bundle consisted of spade and iron rod. He has issued the postmortem report as per Ex.P23. 34. It is in his evidence that on 17.09.2007 he received a sealed bundle from the Investigating Officer. The bundle consisted of spade and iron rod. The doctor has given his opinion that the death may be due to the use of the above weapons. 35. But during cross-examination of this witness he has opined that the death may be due to the person falling from the cycle on a stone or hard place or due to hitting of a hard object. 36. PW-18 Suresh Gaonkar is the Assistant Director of Forensic Science Laboratory, Mysore. In his evidence he has stated that on 20.09.2007 the Investigating Officer sent the items like weapons, blood, bloodstained mud, etc. for testing and the same was tested and he prepared FSL report as per Ex.P25 and Serology report as per Ex.P26 and sent it to the Investigating Officer. 37. PW-19 Nanjegowda in his evidence has stated that he knew deceased Puttegowda. Two years back, while he was coming from his land, near the land of Puttegowda he saw him lying down and his cycle was also beside him. He was bleeding and suffering from pain and crying for help and on seeing this witness he immediately asked him to telephone Manjanna and Gowdaiah about him. When this witness reached his village he asked one Kumar, son of Rudranna to inform this fact to anybody. 38. PW-20 B. Bettaraju is the CPI. of Kikkeri Police Station and panch witness for Ex.P17 mahazar. 39. PW-21 M.B. Thippegowda is the ASI of Kikkeri Police Station. He was entrusted with the work of arresting the deceased and as per the information he arrested the accused near Hiriyaladamma temple and produced him before the Investigating Officer. 40. PW-23 S.P. Manjegowda is the son of deceased Puttegowda. In his evidence he has stated that on 07.09.2007 his father was near their land and there was a land dispute between the accused and his father and on 04.09.2007 survey was also conducted and the judgment of the court of Pandavapura was also in favour of his father. On 07.09.2007 at about 8.30 p.m. one Manjanna called him and said that his father was serious and asked him to come to the Kikkeri Government Hospital, when he went there, he saw the dead-body of his father. On 07.09.2007 at about 8.30 p.m. one Manjanna called him and said that his father was serious and asked him to come to the Kikkeri Government Hospital, when he went there, he saw the dead-body of his father. He also stated that blood was oozing from the injuries and on enquiry he was informed by PW-2 that accused assaulted his father by means of spade and iron rod. 41. PW-24 H.R. Vivekananda was the PSI, Channapatna Rural Police Station and who is also the Investigating officer in this case. In his evidence he has stated that on 07.09.2007 he received a complaint about the assault and he registered the crime under Section 302 of IPC. The FIR marked as Ex.P28 was sent to the court. He then visited the Kikkeri Government Hospital and shifted the dead-body to K.R. Pet Government Hospital and inquest mahazar as per Ex.P9 was conducted by him. 42. PW-25 C.K. Ashwathanarayana is the Police Inspector and IO who has conducted further investigation in the matter and filed the charge sheet. In his evidence, he has stated that on 08.09.2007 he received the case file for further investigation from the PSI, Kikkeri Police Station and verified the records. On 09.09.2007 he visited the Manikanahalli and recorded the statements of witnesses namely M.R. Kumara, M.B. Kumara, Nanjegowda, Gowdaiah and he also sent a requisition to the PWD office requesting to prepare the spot sketch and on 10.09.2007 he recorded the statement of PW-1 staff nurse working in the Kikkeri Government Hospital. He then deputed ASI and PC for tracing out accused and on 14.09.2007 accused was produced before him and they have given a report as per Ex.P27. Thereafter the accused was arrested and on interrogation recorded the voluntary statement of the accused. Then accused took them to the place of occurrence and also took them to the pump-set house and produced the weapons used for committing of the offence, one spade and one iron rod which are marked as MO8 and MO9. 43. On 17.09.207 he received the postmortem report from the medical officer PW-17 and he sent the spade and iron rod to the medical officer for seeking his opinion and he received the opinion as per Ex.P24. He has also sent the seized weapons and articles to the FSL for examination. He received FSL report as per ExP25. 43. On 17.09.207 he received the postmortem report from the medical officer PW-17 and he sent the spade and iron rod to the medical officer for seeking his opinion and he received the opinion as per Ex.P24. He has also sent the seized weapons and articles to the FSL for examination. He received FSL report as per ExP25. On 22.11.2007 he submitted the charge sheet against the accused. He received the copy of the sketch as per Ex.P20, notice as per Ex.P31 and mahazar as per Ex.P32 from the Tahasidlar Officer, K.R. Pet. He has also received the certified copy of the order passed by the Assistant Commissioner, Pandavapura. 44. Indisputably, as per the evidence of PW-2 complainant S.B. Manjunath on 07.09.2007 when he received a phone call from one Kumar about Puttegowda lying in his land on the tank bund of Hemavathi river he immediately took his brother PW-3 Gowdaiah to the spot and saw the injured Puttegowda, blood oozing from the injuries and injured Puttegowda told them that when he was in the land accused Gopala @ Gopi came there and assaulted him by means of spade and iron rod. Immediately PWs.2 and 3 went to Manikanahalli and took the autorickshaw of one Kumar and took the injured Puttegowda to Kikkeri Government Hospital where he was declared dead by the staff nurse who was present there. PW-2 in his evidence has clearly stated about the oral dying declaration made by the deceased Puttegowda. But PW-3 who was present at the time of deceased Puttegowda giving oral dying declaration along with PW-2, in his evidence, has not stated anything about the oral dying declaration. He stated in his evidence that he has not seen any incident and he has not gone with Manjunath and he has not seen the injured Puttegowda In the course of cross-examination, PW-3 has denied the suggestion that Manjunath came to his house saying that somebody assaulted Puttegowda and he is lying on the tank bund and one Kumar informed this fact over the phone ad that he also denied the suggestion that he, along with PW-2 went to the place of occurrence and saw injured Puttegowda bleeding and both of them went to Manikanahalli and brought the autorickshaw of one Kumar and took the injured Puttegowda to the Kikkeri Government Hospital. 45. 45. Even-though PW-2 has stated that PW-3 was also with him at the time of deceased Puttegowda giving the oral dying declaration but PW-3 in his statement has said nothing about the oral dying declaration. Therefore, the evidence of PW-2 cannot be believed in its entirety. Even PWs. 4, 5, 6, 7 and 8 have not supported the case of the prosecution and hence they have turned hostile. 46. But the trial court even-though held that PWs. 3 to 8 have not supported the case of the prosecution it believed the version of PW-2 about the oral dying declaration being given by deceased Puttegowda, charged the accused of the offence punishable under Section 304 Part I of IPC. There is contradiction in the evidence of PW-2 and PW-3 regarding the oral dying declaration. 47. Even looking at the evidence of the doctor PW-17 who has conducted the postmortem over the dead-body of the deceased Puttegowda he has opined that the death is due to shock and hemorrhage as a result of injury sustained by a hard and blunt force impact. He has stated in his evidence that the death is due to injury sustained by hard and blunt force. But during cross-examination of this witness he has deposed that the injuries caused may be due to fall from bicycle on a stone or hard object. There is contradiction in the statement made by the doctor in his examination-in-chief and cross-examination. 48. The judgment cited by the learned counsel for the appellant in the case of HEIKRUJAM CHAOBA SINGH (supra) squarely applies to this case wherein the Hon’ble Supreme Court has held that an oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon the court must be satisfied about the truthfulness of the same an that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. In the case on hand, the oral dying declaration was given to PW-2 by deceased Puttegowda. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. In the case on hand, the oral dying declaration was given to PW-2 by deceased Puttegowda. Even-though PW-3 was present along with PW-2 at the place of occurrence PW-3 in his evidence has not stated anything about the said oral dying declaration and also denied the suggestions made to him about the same. Hence, the trial court believing the version of PW-2 about the oral dying declaration has convicted the accused. It has fully believed the version of PW-2. The trial court ought not to have believed the version of PW-2 in totality as PW-3 who was also with him has not stated anything about the oral dying declaration. Hence, the trial court is not justified in believing the version of PW-2 regarding the oral dying declaration given by deceased Puttegowda. 49. The trial court has opined that the prosecution has failed to establish that the accused has committed the offence punishable under Section 302 of IPC but it has established that the accused has committed the offence punishable under Section 304 Part I of IPC. 50. In the case on hand, there is no eyewitness to the incident. It is only the statement of PW-2 stating that oral dying declaration given by the deceased Puttegowda. The same has been accepted by the trial court and convicted the accused for the offence punishable under Section 304 Part I of IPC. 51. Taking into consideration the materials on record and the evidence adduced by the prosecution and also taking into consideration the facts and circumstances of the case, it is seen that the prosecution has not established the guilt of the accused beyond reasonable doubt since there is no eyewitness to the incident. The injuries sustained by the injured are all on non-vital part of the body and there is no fracture on the body of the deceased. At the most the offence may be taken as committed under Section 325 of IPC. The injuries sustained by the injured are all on non-vital part of the body and there is no fracture on the body of the deceased. At the most the offence may be taken as committed under Section 325 of IPC. The trial court has failed to appreciate the fact that there is no eyewitness to the incident and also the fact that the oral dying declaration cannot be believed in its entirety as there is contradiction in the statements of PWs.2 and 3 who were present at the place of occurrence when the deceased Puttegowda gave the oral dying declaration. 52. On re-appreciation of the entire material on record, this Court is of the considered view that the trial court has committed an error in appreciating the evidence on record in a proper perspective and the learned Judge of the trial court was not justified in convicting the accused for the offence alleged against him. 53. The judgment relied upon by the learned counsel for the appellant in HEIKRUJAM, CHAOBA SINGH (supra) squarely applies to the case on hand. In the said judgment it was held that an oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. 54. As per the contention of the learned counsel for the appellant, the offence against the accused may come within the purview of either 325 or 326 of IPC but it does not come within the purview of Section 304 Part I of IPC. It is relevant to state that when Sections 325 and 326 of IPC are read together the words “grievous hurt” are common in both the Sections. The word “hurt” and “grievous hurt” are defined in Sections 319 and 320 of IPC respectively. In the case on hand, the death was caused by use of weapons of MOs.8 and 9. It is relevant to state that when Sections 325 and 326 of IPC are read together the words “grievous hurt” are common in both the Sections. The word “hurt” and “grievous hurt” are defined in Sections 319 and 320 of IPC respectively. In the case on hand, the death was caused by use of weapons of MOs.8 and 9. The injured has suffered injuries as reflected at Ex.P23 – postmortem report issued by PW- 17, the doctor who conducted autopsy on the dead-body. The appellant-accused would be considered to have voluntarily caused grievous hurt which endangers life of the deceased Puttegowda and therefore at the most the accused shall be sentenced for the offence punishable under Section 325 of IPC and not under Section 304 Part I of IPC even though the charge was framed for the offence under Section 302 of IPC. 55. For the foregoing reasons, the point framed by this court is answered in the negative and the appeal is hereby allowed in part. The judgment of conviction and order of sentence dated 27.04.2010/29.04.2010 passed by the Presiding Officer, Fast Track Court-1 at Mandya in S.C. No. 05/2008, convicting the accused-appellant herein for the offence punishable under Section 304 Part I of IPC is hereby set aside. The accused-appellant is convicted for the offence punishable under Section 325 of IPC. The appellant-accused was in judicial custody for a period of 3 years 4 months during the period of trial and also after filing of this appeal. Hence the same may be taken as service of sentence. With regard to fine amount, the same is modified. The appellant-accused is directed to pay a fine amount of Rs. 50,000/-. Out of the said sum, Rs. 40,000/- shall be paid to the son of deceased – S.P. Manjegowda (PW-23) as compensation amount and Rs. 10,000/- shall be defrayed to the prosecution. The appellant-accused is directed to deposit the fine amount of Rs. 50,000/- before the trial court within one month from the date of receipt of a copy of this order. Soon after deposit of the amount, Rs. 40,000/- shall be disbursed to the son of the deceased Puttegowda. The bail bond shall stand cancelled.