ORDER
Leave granted. 2. This appeal by special leave is directed against the judgment and final order dated 14.10.2014 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 1148 of 2012 arising out of Sessions Case No. 740 of 2011. 3. The background facts in brief as emerged from the prosecution case are that the appellant herein and the deceased Jayram Khapre are common friends to Prakash Jadhav (PW8) and Tukram Bhostekar (PW6). All these persons, being labourers, were in the habit of drinking together at a place called Teen Batti on regular basis and the appellant and deceased had a common place on footpath for sleeping in the night. In the evening of 19th July, 2011, when they assembled as usual, an altercation took place between the appellant and the deceased over sharing of liquor. On the next day morning, PWs 6 and 8 saw the deceased in a severely injured condition at his sleeping place and the deceased informed them that it was the appellant who inflicted injuries on him with a stone. On the complaint of PW 1 (wife of the victim), PW4 - Nandkumar, ASI reached the spot, took statement of the victim and shifted him to hospital where he succumbed to the injuries on 26.7.2011. Meanwhile, carrying out usual formalities, police registered Crime No. 47 of 2011 against the accused-appellant and arrested him. Recoveries of stone (alleged weapon) and clothes were made at the instance of the accused and charges were framed against him for the offences punishable under Sections 302 and 324, IPC. The accused pleaded not guilty and claimed to be tried. 4. The trial Court found the appellant guilty and convicted him for the offence punishable under Section 302, IPC and sentenced to suffer imprisonment for life and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for two months. Subsequently, the appeal of the accused before the High Court also came to be dismissed. Aggrieved by the view taken by the Courts below, the accused-appellant is before us by way of this appeal. 5. At the time of admission of this appeal, we issued notice limited to the question as to whether the offence is within the scope of Section 304 (ii), IPC. Accordingly, we have heard learned counsel for the parties in that perspective and perused the material available on record. 6. Learned counsel for the appellant submitted before us that there were material irregularities on the part of prosecution and the so called dying declaration in this case cannot be relied on as it was not a dying declaration recorded in accordance with the enshrined principles of law. Despite there was adequate time, the Investigating Officer did not make an attempt to record the statement of victim in presence of jurisdictional Magistrate. Fitness certificate of the victim was obtained from the Doctor after the preparation of alleged dying declaration. There was no expert chemical analysis of the blood group of the deceased so as to match the same with the blood found on the alleged weapon (stone) and smeared clothes. Even the alleged recoveries of bloodstained clothes and stone were made after a considerable long time. He further argued that there was no eyewitness to the alleged incident and the appellant was charged with the offence only on the basis of scuffle between the appellant and the victim occurred on the previous day and there was not even complete chain of circumstances to fasten the alleged crime to the appellant. Learned counsel finally submitted that the Courts below have committed a grave error in convicting the appellant under Section 302, IPC by overlooking the material discrepancies in the prosecution case and hence, the judgments of lower Courts should be set aside. 7. We have examined the factual aspect of the case and noticed that occasional altercations between the accused and the victim are common in their routine life. After scuffles, again they used to sit and drink together and share the place for their night sleep. It appears that on the day of incident also, they went to sleep together, which makes it clear that they were not in inimical terms. The injuries upon the body of the deceased were although somewhat serious in nature but death was not immediately occurred. The victim succumbed to the injuries on 26.7.2011 after a gap of about seven days, while undergoing treatment at the hospital. Admittedly, the statement of the deceased was recorded by the police and not by the Magistrate. Considering all these factors, in our opinion the prosecution has however proved its case with regard to the occurrence of the incident, but on careful scrutiny of the entire evidence, we are of the considered view that it is a case of culpable homicide not amounting to murder. 8. Therefore, taking into account the facts and circumstances of the case, the appellant cannot be convicted under section 302, I.P.C. The case against the accused-appellant can be sustained in the eye of law if he is convicted under Section 304 Pt.-II, I.P.C. The appeal is, therefore, partly allowed. Resultantly, the conviction determined by the Courts below under Section 302, IPC is set aside and the accused is convicted under Section 304 Part-II, IPC and thereby sentenced to suffer seven years imprisonment. However, we are not inclined to interfere with the condition of fine as imposed by the Courts below. Needless to say that the appellant is entitled for set off of the period of custody undergone during trial. 9. Ordered accordingly. Ordered accordingly.