JUDGMENT : In Sessions Trial No. 121 of 2006, Anthony Barla has been convicted and sentenced to RI for life and fine of Rs. 5,000/- under section 302 of the Indian Penal Code (in short IPC) for causing death of Johan Barla. Simdega P.S. Case No. 61 of 2006 was lodged on 15.05.2006 against the appellant under sections 341, 324 and 307 IPC. In his written report dated 15.05.2006 Johan Barla has alleged that in the night of 13th May, 2006 at about 10:00 PM the appellant assaulted him with tangi and on his raising hulla neighbors came there and pacified him. At that time he was alone in his house and when his family members came he was brought to Simdega for treatment. From his written report it appears that he has given his written statement to the police from St. Ursala Hospital, Konbir Nawatoli. On 18.06.2006 Johan Barla died and accordingly the offence under section 302 IPC was added in the report vide order dated 27.07.2006. After the investigation a charge-sheet was submitted against the appellant and he has faced the trial on the charge under section 302 IPC. In the trial the prosecution has examined seven witnesses out of whom PW-2, PW-3 and PW-4 are related to Johan Barla. PW-1 Namjan Guria is a co-villager who has been projected as an eye-witness. 2. Namjan Guria told in the Court that in the night of 13.05.2006 he heard quarrel in the house of Anthony Barla. On hearing hulla, he has gone there and found that Johan Barla was objecting to Anthony Barla hurling abuses at him. Anthony Barla picked up a tangi and assaulted Johan Barla on his head and occipital region. He then intervened and brought Johan Barla to his house. PW-2, Nehmis Barla is the brother of Johan Barla; PW-3, Nirupam Barla is the daughter-in-law and; PW-4, Subanand Barla is his nephew. At the time of the occurrence they were not at home and on getting information about assault on Johan Barla they came home and found him seriously injured. They have claimed that PW-1 has informed them about the occurrence. 3. At the time of the occurrence they were not at home and on getting information about assault on Johan Barla they came home and found him seriously injured. They have claimed that PW-1 has informed them about the occurrence. 3. PW-6 who has examined Johan Barla on 15.05.2006 at Sadar Hospital, Simdega has found the following injuries on his person : "(i) Lacerated wound of size 2" x 1/4" x 1/2" over left frontal parietal region of skull (ii) Lacerated wound of size about 2-1/2" x 1/4" x 1/2" behind injury no.1. (iii) Lacerated wound of size about 3/4" x 1/2" x muscle deep over left temporal region of skull. (iv) Lacerated wound of size about 1-1/4" x 3/4" x muscle deep just below medial side of clavicle." 4. In his opinion all the injuries were caused by heavy instrument like tangi, within 48 hours of the examination. In his opinion injury Nos. 1 and 2 were grievous in nature and the injury Nos. 3 and 4 were simple. He referred Johan Barla for further treatment to RIMS, Ranchi. 5. The written statement of Johan Barla which was given to the police on 15.05.2006 can be treated as his dying declaration. The express words of section 32 of the Indian Evidence Act makes it abundantly clear that statement of a person who is either dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense would be relevant even though the person was or was not at the time when made the statement was made under expectation of death. The statement of Johan Barla is admissible in evidence under section 6 of the Indian Evidence Act also. 6. An accused can be convicted solely on the basis of a dying declaration and in law it is not necessary that a dying declaration must be corroborated by other evidence. In "Jaswant Singh v. State (Delhi Administration)" (1978) 4 SCC 85 the Hon'ble Supreme Court has observed that on the basis of uncorroborated dying declaration conviction of an accused can be maintained and the only requirement in law is that the dying declaration should be free from blemishes and inspires confidence of the Court. 7. In "Jaswant Singh v. State (Delhi Administration)" (1978) 4 SCC 85 the Hon'ble Supreme Court has observed that on the basis of uncorroborated dying declaration conviction of an accused can be maintained and the only requirement in law is that the dying declaration should be free from blemishes and inspires confidence of the Court. 7. In "Dayaram and Another v. State of Madhya Pradesh" (2019) SCC Online SC 1436" referring to the judgement in "Dharam Pal v. State of U.P." (2008) 17 SCC 337 the Hon’ble Supreme Court has observed that: "as per section 32 (1) of the Evidence Act, the FIR should be treated as a Dying Declaration". 8. In "Purshottam Chopra and Another v. State (Govt. of NCT Delhi)" 2020 SCC Online SC 6 the law on dying declaration has been summarized by the Hon’ble Supreme Court in the following manner : "79. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under :- (i) A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court. (ii) The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination. (iii) Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence. (iv) When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail. (v) The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must he satisfied that the maker is in a fit state of mind and is capable of making the statement. (vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. (vi) Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration. (vii) As regards a burns case, the percentage and degree of burns would not by itself be decisive of the credibility of dying declaration, and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement. (viii) If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration." 9. Mr. Atanu Banerjee, the learned counsel for the appellant has referred to several judgments to contend that the act of the appellant shall at best would fall under Exception-4 to section 300 IPC. The learned counsel has finally fallen back on a recent decision of the three Judges Bench of the Hon'ble Supreme Court in "Ajit Singh v. State of Punjab" in Criminal Appeal No. 2094 of 2008 wherein agreeing the view taken by a two Judges Bench, the Hon'ble Supreme Court has observed that the appellant who assaulted the deceased with a spade was liable to be convicted under section 304 Part-1 IPC. 10. In our opinion the issue which is before us does not require any elaborate discussion on the merits of the case. From the written statement of Johan Barla which was given to the police, it would appear that the incident has occurred on a trivial matter. Johan Barla had gone to the house of the appellant and objected to dog poo thrown in front of his house. According to him the appellant did not listen and became aggressive. It further appears from his written statement that the appellant was not carrying any arm rather he picked up a tangi lying in his house and struck a blow on his head. Johan Barla has given his written statement two days after the occurrence and he has died on 18.06.2006. 11. It further appears from his written statement that the appellant was not carrying any arm rather he picked up a tangi lying in his house and struck a blow on his head. Johan Barla has given his written statement two days after the occurrence and he has died on 18.06.2006. 11. What was the treatment given to Johan Barla has not been brought on record and PW-7 who has conducted the post-mortem examination has observed thus : "I have not found any lacerated injuries. I have found the injuries which may be older than a month. I have not found any evidence of treatment given to the deceased". 12. We have examined the materials on record and considered the submissions of the learned counsel for the appellant. We hold that the conviction of the appellant under section 302 IPC is not sustainable and accordingly, his conviction in Sessions Trial No. 121 of 2006 passed by the learned Sessions Judge, Simdega for causing death of Johan Barla is set-aside. 13. In "Ramchandra Ohdar v. State of Bihar, (1999) 9 SCC 97 , the accused who gave a blow with a sharp-edged weapon on the neck of the deceased was held liable to be convicted under section 326 IPC. 14. In view of the aforesaid facts, we hold that the appellant is liable to be convicted and sentenced to RI for 7 years under section 326 IPC. 15. Ordered accordingly. 16. Mr. Saket Kumar, the learned APP states that the appellant, namely, Anthony Barla is in custody. 17. Accordingly, the appellant, namely, Anthony Barla shall be set free forthwith, if not wanted in connection to any other case. 18. In the result, Criminal Appeal (D.B.) No. 1288 of 2017 is partly allowed, in the above terms. 19. Let lower Court records be transmitted to the Court concerned, forthwith. 20. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'. Appeal partly allowed.