( 1 ) ESE two appeals by the State of Gujarat against the respondent - Hasmukh @ Bhikha Gova Harijan, first one against the order of acquittal under Sec. 302 of the I. P. Code, and the second one for an enhancement of sentence against the inadequate order of sentence under Sec. 304-Part II of the I. P. Code, arise out of the very same judgment and order of conviction and sentence dated 20-12-1990 rendered in Sessions Case No. 55 of 1989, passed by the learned additional Sessions Judge, Jamnagar, wherein on the respondent coming to be tried for the alleged offence punishable under Sec. 302 of the I. P. Code, was ultimately convicted for the offence punishable under Sec. 304 Part-II and sentenced to undergo 3 years R. I.

( 2 ) BRIEFLY, it is the prosecution case that the incident in question wherein Bhikha shakra was stabbed to death by accused Hasmukh @ Bhikha Gova, took place on 26-11-1989 at 19-30 hours in Harijanvas, at village Vanavad. The prosecution, in order to bring home the charge against the accused, has mainly relied upon firstly one eye-witness, viz. PW 4 Nathu Bijal, and secondly, the seven oral dying declarations made before (i) PW 6 Ramji Sajan, (ii) PW 7 Madha Natha, (iii) PW 8 Devshi jetha, and (iv) PW 9 Devji Mangal, (v) PW 10 Haja Anand, (vi) PW 11 Jetha Anand, and (vii) PW 12 Sakra Deva. According to eye-witness PW 4, the incident in question took place in the compound of his house where the accused after stabbing Bhikha on his back ran away. Injured thereafter walked home alone which was nearby and on way stated to PWs 6, 7, 8, 9, 10, 11 and at home to PW 12, his father, that bhikha gave him the knife blow and has run away. Thereafter, the injured, first of all was taken to PW 2 Dr. J. J. Pandya, Medical Officer at jamjodhpur Primary Health Centre. According to this Medical Officer, since the condition of the injured was quite serious the persons attending upon him were advised to take him at once to Irwin Hospital at Jamnagar. Thereafter, on the injured being taken to Irwin Hospital, Jamnagar, P. W. 3 Dr. A. H. Vyas examined him. According to this doctor, when injured was brought, he was quite conscious, and on making the usual inquiry about the history of assault, it was stated before him that he was attacked with knife. It further appears from the record that at Irwin Hospital, P. W. 16 Head Constable Babubha Shivubha Jadeja, recorded the complaint Ex. 44 of injured bhikha at 23-00 hours which ultimately came to be registered at Bhanvad Police station on next day at 7-55 hours, which stands projected before us also as dying declaration. Injured Bhikha ultimately succumbed to injuries at 4-00 A. M. on 27- 11-1989. On the basis of these allegations, after the investigation was over the respondent was charge-sheeted for the alleged offence under Sec. 302 I. P. Code to stand trial before the Sessions Court at Jamnagar, where he pleaded not gulity and claimed to be tried.

( 3 ) THE trial Court, after duly appreciating the prosecution evidence on the record, for the reasons stated in the impugned judgment, convicted and sentenced the respondent-accused for the offence punishable under Sec. 304 Part-II of the I. P. Code as stated above in para 1 of this judgment, giving rise to the present two appeals by the State of Gujarat. It appears that the respondent has not challenged the impugned judgment and order of conviction and sentence passed against him. .

( 4 ) MR. M. A. Bukhari, the learned A. P. P. while challenging the order of acquittal vehemently submitted that either the order of conviction and sentence need to be altered that from one under Sec. 304 Part-II to Sec. 302 I. P. Code and in case the same was ultimately found to be not possible, then in that case, the sentence under Sec. 304 Part-II be suitably enhanced. Making good this submission, the learned A. P. P. has carefully taken us through the evidence of all the prosecution witnesses and further contended that the trial Court has co