JUDGMENT Kanwaljit Singh Ahluwalia, J. - The deceased, in the present case, was a beggar. 2. The accused-appellant before us is a rag-picker. 3. It has come in the evidence that they used to sell empty liquor quarters to the kabaadi (scarp dealer) and with the money earned used to take liquor. 4. It has also come in the evidence that both often used to fight over the liquor, and in the present case, due to solitary knife blow caused by the appellant, the deceased Jagdish @ Baba died and a case was registered against the accused-appellant. 5. The Court of Additional Sessions Judge, No.10, Jaipur Metropolitan Jaipur, vide its impugned judgment dated 26.07.2016, convicted the appellant for commission of offence punishable under Section 302 of the Indian Penal Code. 6. Having convicted the appellant for the above said offence, the trial Court, vide a separate order of even date, sentenced the appellant as under :- "For offence U/s. 302 I.P.C. : The appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.50,000/- and in default of payment of fine to further undergo six months additional imprisonment. 7. The sentence were ordered to run concurrently." 8. Aggrieved against the judgment of conviction and the order of sentence, the appellant has preferred this appeal through Jail. 9. The Rajasthan High Court Legal Service Authority, Jaipur has appointed Shri Anshuman Saxena, as a Counsel to defend the appellant. 10. In the present case, the criminal proceedings were set into motion on the basis of the written-report (Exhibit-P/12) submitted by A.S.I. Omprakash (PW-8), who was then posted as Station House Officer at Police Station Ramganj Jaipur City (North). 11. On the basis of the above said written-report (Exhibit-P/12), a formal F.I.R. (Exhibit-P/13) bearing registration No.215/2015 was registered at Police Station Ramganj, Jaipur City (North) for commission of offence punishable under Section 302 of the Indian Penal Code. 12. The above said written-report (Exhibit-P/12), when translated into English reads as under :- To, The Station House Officer, Police Station Ramganj, Jaipur (North) Subject - Regarding registration of the case and initiation of legal action. Sir, In the above noted subject, it is submitted that I Omprakash, A.S.I. on the night was posted as a Duty Officer. 12. The above said written-report (Exhibit-P/12), when translated into English reads as under :- To, The Station House Officer, Police Station Ramganj, Jaipur (North) Subject - Regarding registration of the case and initiation of legal action. Sir, In the above noted subject, it is submitted that I Omprakash, A.S.I. on the night was posted as a Duty Officer. Today, i.e. on 19.05.2015 in the morning at 06:30 A.M. through Constable Babulal Police Post Ghatgate, a telephonic information was received that a person, aged 45-50 years in a pool of blood is lying in front of the Shop No. 58 at Sanjay Bazar, Jaipur. Upon receipt of said information, I being Duty Officer, along with companion Police Officials Constable-Ramavtar, 10019 and Chhaju Lal, 2770 on a Government Jeep along with Driver Shambhudayal, 5554 from the Police Station reached at Sanjay Bazar, Jaipur. At the spot, one person, whose age is about 45-50 years and who look like a beggar, is lying in the pool of blood on the footpath in front of the shop. With the help of the companions Police Officials, the said person from the place of occurrence was made to sit in the Police vehicle for taking to the hospital for the treatment. Meanwhile, I being a Duty Officer asked the said person as to what happened. He said that in the fight, Raju gave a knife blow. On saying so, the said person started teetering. Upon asking his name, the said person had not disclosed the same. The said person was taken to the S.M.S. Hospital, Jaipur. The said person died on the way. Doctors at the Emergency Ward of the S.M.S. Hospital, Jaipur declared the said person as dead. The dead-body of the said person was kept at mortuary for the post-mortem. I have come to the Police Station. The unknown beggar was caused a injury by some person named Raju. Therefore, the case be registered and the legal action be initiated. Signed Omprakash son of Totaram Caste Adhe Rajput, aged 54 years Resident of Village Kheda Mahmood Thana. 13. From the impugned F.I.R., only fact which is discernible is that the unknown person who was injured disclosed to A.S.I. - Omprakash (PW8) that in the fight, he has been caused a knife blow by Raju. No other particulars of the accused have been given in the impugned F.I.R. 14. 13. From the impugned F.I.R., only fact which is discernible is that the unknown person who was injured disclosed to A.S.I. - Omprakash (PW8) that in the fight, he has been caused a knife blow by Raju. No other particulars of the accused have been given in the impugned F.I.R. 14. After registration of impugned F.I.R., the Investigating Agency submitted a charge-sheet against the accused-appellant under Section 173 Cr.P.C. The case was committed along with the accused-appellant to the Court of Sessions and the trial was entrusted to the Court of Additional Sessions Judge, No.10, Jaipur Metropolitan, Jaipur. 15. In the present case, the prosecution examined as many as twelve witnesses, namely Irfan (PW-1), Abdul Hameed Qureshi (PW-2), Alimuddin Qureshi (PW-3), Dr. B.L. Meena (PW-4), Mohan Lal (PW-5), Girdhar Singh (PW-6), Jagdish Doodhwal (PW-7), Omprakash (PW-8), Mohammad Shakil Qureshi (PW-9), Surendra Kumar (PW-10), Mahaveer Prasad (PW-11) and Ramkishan (PW-12). 16. The prosecution also proved on record documents Exhibit-P/1 to Exhibit-P/24. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to him. He denied all the circumstances and pleaded innocence. 17. First we shall take brief note of the medical evidence. 18. Dr. B.L. Meena (PW-4), being Medical Jurist at Government Satellite Hospital, Jaipur, on 23.05.2015 at 01:30 P.M. had conducted autopsy on the dead-body of Jagdish @ Baba. 19. In the Post Mortem Report (Exhibit-P/4), Dr. B.L. Meena (PW-4), had noted following injuries on the person of deceased :- "1. Punctured lacerated wound 1.5 x 1.5 cm peritoneal cavity deep on left upper lumber area at abdomen. The margins are irregular directing joint to back ward with dark clotted blood. 2. Abrasion 3 x 2 cm right cheek proximal lateral to right eye with clotted blood. 3. Three abrasions of size 2 x 1 cm on tip of nose, 1 x 1/2 cm right nostril and 1 x 1/2 cm root of nose. 4. Abraided bruise 3 x 2.5 cm top of right shoulder with red. 5. Abrasion 2.5 x 2 cm right knee and antero lateral about red." 20. From perusal of the above injuries, it is revealed that the Injury No.1 is punctured lacerated wound in the peritoneal cavity. Injury Nos.2, 3, 4 & 5 are abrasions on the various parts of the body of the deceased. 21. 5. Abrasion 2.5 x 2 cm right knee and antero lateral about red." 20. From perusal of the above injuries, it is revealed that the Injury No.1 is punctured lacerated wound in the peritoneal cavity. Injury Nos.2, 3, 4 & 5 are abrasions on the various parts of the body of the deceased. 21. As per opinion of the Doctor, the cause of death was acute hemorrhagic shock due to injury to the spleen, which was sufficient to cause death in the ordinary course of nature. 22. Nothing was specifically asked to the Doctor in the cross-examination, whether abrasions are result of fall or due to altercation. We cannot rule out that the abrasions suffered by the deceased Jagdish @ Baba can be due to fall. 23. Irfan (PW-1) in the Court deposed that the Police had called all the scrap dealers and inquired from them about the alleged occurrence. The witness stated that he was not aware about the occurrence and he had not disclosed anything to the Police. This witness was declared hostile to the prosecution. 24. Abdul Hameed Qureshi (PW-2) stated that he is doing work of painting, denting and repair of the motorcycles and scooters. On 18.05.2015 at about 09:00 P.M. he went to the shop of his brother-in-law. At that time, Jagdish @ Baba and Raju over the liquor (alcohol) were fighting. He further stated that his brother-in-laws Shakeel and Almu told them to go away and then they went towards Ghatgate. 25. Alimuddin Qureshi (PW-3) stated that he is working as scrap dealer (kabadi). On the day of alleged occurrence, Jagdish and Raju had brought empty plastic liquor quarters. He had given Rs.70/- to Jagdish Baba and Rs.80/- to Raju accused. They started fighting and they were sent away from their shop by his elder brother. This witness stated that they had a fight at the Ghatgate. 26. Mohan Lal (PW-5) on 19.05.2015 was posted as A.S.I. at Police Station Ramganj. He had gone to the spot and in his presence, S.H.O. had prepared site-plan of the spot. 27. Constable - Girdhar Singh (PW-6) stated that in his presence, Tshirt having blood stains was recovered from the accused Raju vide memo Exhibit-P/8. 28. Jagdish Doodhwal (PW-7) is another Constable posted at Police Station Ramganj. He has also deposed regarding his participation in the investigation. 29. 27. Constable - Girdhar Singh (PW-6) stated that in his presence, Tshirt having blood stains was recovered from the accused Raju vide memo Exhibit-P/8. 28. Jagdish Doodhwal (PW-7) is another Constable posted at Police Station Ramganj. He has also deposed regarding his participation in the investigation. 29. A.S.I. Omprakash (PW-8) had presented a written-report (Exhibit-P/12) in which he had disclosed the factum of oral dying declaration made by the deceased. 30. Mohammad Shakeel Qureshi (PW-9) stated that Raju and Baba were having a quarrel. He made them to go away from his shop. The witness stated that the accused and deceased often used to fight. The exact words stated by this witness are that ^^vDlj jktw o txnh'k ckck esa [kk ihdj >xMk gksrk jgrk FkkA** 31. Constable Surendra Kumar (PW-10) had carried the articles to the F.S.L. vide Exhibit-P/14. Mahaveer Prasad (PW-11) was posted as Constable and was Incharge of the Malkhana. Thus, the prosecution has examined Constable Surendra Kumar (PW-10) and Mahaveer Prasad (PW11) to prove the link evidence. 32. We may note here that during the course of investigation, a knife was also recovered from the accused. 33. We have heard Mr. Anshuman Saxena, ld. Counsel engaged on behalf of the accused-appellant by the Rajasthan High Court Legal Services Authority, Jaipur and Mr. Javed Choudhary, ld. Public Prosecutor appearing for the State, as well as perused the entire record of the case. 34. Mr. Anshuman Saxena, ld. Counsel appearing for the accused-appellant, has submitted that no reliance can be placed upon the oral dying declaration. Counsel has further submitted that the alleged occurrence had taken place in the night and not in the morning. It is contended that it is difficult to believe that in the morning, the deceased would be in a position to speak due to excessive blood loss. Counsel has contended that none has witnessed the alleged occurrence and the very fact that the accused and deceased earlier had a fight, can be a good reason to implicate the appellant as accused. Counsel has further contended that it is necessary for the prosecution to stand on its own legs, to prove to the offence to the hilt. It is further urged that it cannot be said that offence, if any, has been committed by the appellant alone and by none else. Counsel has further contended that it is necessary for the prosecution to stand on its own legs, to prove to the offence to the hilt. It is further urged that it cannot be said that offence, if any, has been committed by the appellant alone and by none else. Lastly, Counsel has stated that the recovery of the blood stains T-shirt and the weapon will no way strengthen the case of the prosecution and the oral dying declaration is liable to be ignored by this Court. 35. To controvert the above submissions made by Mr. Anshuman Saxena, ld. counsel appearing for the accused-appellant, Mr. Javed Choudhary, ld. Public Prosecutor appearing for the State, has submitted that on the T-shirt human blood has been found and the very fact that immediately after the fight between the accused and deceased occurrence had taken place is sufficient to hold that the offence, if any has been committed by the appellant alone and by none else. 36. Having heard the learned counsel appearing for the accused-appellant and the ld. Public Prosecutor appearing for the State, we are of the view that in the present case, it is evident that the deceased and accused daily used to take liquor together and fight between themselves. 37. We have already noted relevant portion from the examination-in-chief of Mohammad Shakeel Qureshi (PW-9), who has stated that often the accused and deceased used to fight after taking liquor. 38. It has also come in the evidence of Alimuddin Qureshi (PW-3), younger brother of Mohammad Shakeel Qureshi (PW-9) that on the day of alleged occurrence, both had brought plastic liquor quarters for the sale to his Kabadi shop (shop of scrap dealer). Deceased Jagdish @ Baba was given Rs.70/- whereas Raju was given Rs.80/-. It has also come in the evidence that the accused and deceased after taking the money had gone towards the liquor-vend. Alimuddin Qureshi (PW-3) in the Court has stated that ^^iSls ysdj os Bsds dh rjQ x;s vkSj ogha ij muesa rdjkj gqbZA** 39. We find that the witnesses here made an attempt to shift the place of occurrence in order to absolve themselves. They have stated that the accused and deceased left towards Ghatgate, but in the present case, Jagdish @ Baba was lying injured in front of the shop No.58 at Sanjay Bazar, Jaipur. We find that the witnesses here made an attempt to shift the place of occurrence in order to absolve themselves. They have stated that the accused and deceased left towards Ghatgate, but in the present case, Jagdish @ Baba was lying injured in front of the shop No.58 at Sanjay Bazar, Jaipur. Therefore, the alleged occurrence has immediately taken place in the night when the deceased and accused were having an altercation over the liquor (alcohol). In the present case, one line dying declaration made to A.S.I. Omprakash (PW-8) is spontaneous. It is free from the blemish of consultations and the deliberations. The deceased has only stated that Raju had given a knife blow during the course of an altercation. Thus, in the present case, dying declaration itself is not to be used as a clinching evidence, but as a corroborative evidence to the testimony of witnesses, who have stated that over the liquor accused and deceased had a fight. Thus, the accused and deceased were seen together. They were quarreling and when Jagdish was found injured, he disclosed to A.S.I. - Omprakash (PW-8) that Raju had caused a knife blow. 40. In the above context, the injuries on the person of deceased assume importance. Injury No.1 is penetrating stab wound in the abdomen. Injury Nos. 2 to 5 are abrasions, which can be as a result of fall or of an altercation between the deceased and accused. 41. It is not a case of previous enmity between the accused and deceased. They used to sit together daily & take liquor and after that to give vent to their feelings used to fight. It was their daily routine. On the day of incident, after quarrel we can safely infer that something happened. 42. We cannot rule out that the hot words exchanged between them and upon some insulting remark made by the deceased the accused at the heat of moment caused solitary below leading to death of deceased. 43. Thus, taking totality of circumstances, the nature and the seat of the injuries and the oral dying declaration where the deceased stated that during fight accused caused solitary blow, we are of the affirm view that in the present case, the accused had no intention to commit culpable homicide amounting to murder. At the most, in the present case, knowledge can be attributed to accused. 44. At the most, in the present case, knowledge can be attributed to accused. 44. Therefore, we shall convert conviction of the appellant of offence under Section 302 I.P.C. to one under Section 304 Part-II I.P.C. Having converted the offence, we set aside the sentence of life imprisonment awarded by the trial Court upon the appellant. We are of the view that in the present case, the ends of justice will be fully met in case, in respect of offence under Section 304 Part-II I.P.C. sentence of five years rigorous imprisonment is awarded upon the appellant. 45. In the peculiar facts and circumstances of the case, we are of the view that it is not a case where the sentence of fine ought to be awarded. The accused is a rag-picker. He used to sell empty liquor quarters and with the meager amount of Rs.70-80/- used to buy liquor for himself and thus, the sentence of fine is not called for. 46. Consequently, we modify the conviction of offence from under Section 302 I.P.C. to 304 Part-II I.P.C. and sentence the appellant to undergo five years rigorous imprisonment. 47. With the above modification in the conviction and the sentence, the present appeal is disposed of.