1. The appellant is aggrieved by the judgment and order dated 24.8.2004, passed by the 2nd Adhoc Additional Sessions Judge, Nagpur, in Sessions Trial 162 of 2003, by and under which, the appellant (hereinafter referred to as “the accused”) is convicted of offence punishable under section 304 Part II of the Indian Penal Code (“IPC” for short) and is sentenced to suffer simple imprisonment for five years and to payment of fine of Rs. 5000/-.

2. Heard Shri R.M. Daga, the learned counsel for the accused and Smt. Ritu Kaliya, the learned Additional Public Prosecutor for the respondent/State.

3. The learned counsel for the accused submits, that the judgment and order impugned is manifestly erroneous and militates against the weight of evidence on record. The conviction is, substantially if not entirely, based on dying declaration dated 4.1.2003 recorded by Smt. Shewantabai Rahate (P.W.6). The said dying declaration ought to have been discarded as wholly unreliable, is the submission. The dying declaration is not in a question and answer form, the doctor, who is said to have endorsed the fitness of the injured Vaishali to give the statement is not examined, the dying declaration p