The dying declaration stands on the same footing as any other piece of evidence and must be judged in the light of surrounding circumstances. Motive, preparation, and opportunity are relevant as circumstantial evidence, and the nature of injuries, weapon used, and conduct of the accused are important in determining the appropriate offence.

JUDGMENT:- This is an appeal by the appellant, against his conviction under Section 304 Part II of the Penal Code. The sentence passed by the learned Sessions Judge is 8 years' R.I. and a fine of Rs. 300/- and, in default of payment of fine, to undergo further R.I. for 2 months. The charge against the appellant at the trial was that on or about 5th June, 1968 at about 7 a.m. at Bandora village he committed murder by intentionally or knowingly causing death of Fondu alias Babuli Vithu Naik, and thereby committed an offence punishable under Section 302 of the Penal Code. There is also the application by the State for enhancement of the sentence passed. According to the State the conviction should have been under Section 302 of the Penal Code.

2. The prosecution case, in a nutshell, is that the appellant and the deceased were known to each other for some period before the deceased was assaulted by the appellant with a spade on 5th June, 1968, resulting in multiple injuries. The deceased was a sepoy employed by the Shanta Durga Temple Committee. In 1965 the appellant was granted the fishing rights of the sluice gate of a certain field belonging to this temple. In exchange the appellant was required to supervise the bunds of that field. There was negligence on his part in this work and therefore these rights were withdrawn in September, 1965. It was the deceased who reported to the Committee that the appellant was negligent. The appellant then started a case against the Committee. The deceased informed the Secretary and the President of the Committee that the appellant had threatened him. He also according to these officebearers, threatened them. The appellant lost this case and thereafter filed an appeal. It was three days thereafter that he attacked the deceased with a spade. The deceased was removed to the hospital on 5th June, 1968, with multiple injuries. He expired on 16th June, 1968. The police, after necessary investigation, arrested the appellant on 25th July, 1968. He was thereafter challaned under Section 302 of the Penal Code.

3. The case of the appellant is that he is falsely implicated because of litigation with the Temple Committee. He pleaded an alibi. He adduced evidence in his defence on alibi. He admitted he had been removed from the assignment of fishing rights. He also admitted the institution of a case and an appeal. He denied the allegation that the deceased had been threatened by him.

4. The prosecution evidence consists of - (a) the statement of the deceased that he was assaulted by the appellant with a spade; (b) the statements of some prosecution witnesses soon after the assault that the deceased informed them that he had been assaulted by the appellant; (c) evidence on antecedent conduct of the appellant; (d) evidence on subsequent conduct of the appellant; and (e) medical evidence. As regards (a) there is the statement of the deceased as to the cause of his death admissible under Section 32(1) of the Evidence Act. The assault took place at about 7 a.m. on 5th June, 1968. The deceased was removed to the Margao Hospital same day at 10.45 a.m. where his statement was recorded by Sebastiac Caeiro (P.W. 13) at about 2.30 p.m. This statement (Exh. 18) was registered as first information report under Section 324 of the Penal Code. It is an important piece of evidence. It is a short statement and it may be convenient to reproduce it :-

"I am working as a watchman in Devaloy of Shantadurga-Queula. Since 1965 I was entrusted by Devaloy Committee to guard a field denominated "ZUON KORPI KANDDI", situated at Keloshim-Marmagoa. In the very year one Shri Vinaica Fotto Durbattkar of Korrzale-Parampo, Modkoi who was looking after a manos "SHANTIGATON" which is adjacent to the referred field, wanted to reap the field in question but as I was maintaining the watch on it I prevented him from doing so and since then the said Vinaica was not in good terms with me. On several occasions he threatened me of being killed b