JUDGMENT : G.K. Misra, J. - The Appellant has been convicted u/s 302, Indian Penal Code for having murdered Joyakrushna Gadnaik and sentenced to imprisonment for life. He has also been convicted u/s 326, Indian Penal Code for having caused grievous hurt to Krupasindhu Naik (p.w.3) by a dangerous weapon and sentenced to R.I. for five years and to pay fine of Rs. 100/ -, in default to R.I. for six months more. The sentences are to run concurrently. 2. Prosecution case may be stated in brief. The deceased was the Secretary of the Grain Gola, of mouza Bounsapokhari in Bindol P.S. P.w.3 was a ward member of the village. There was scarcity of Water. The deceased, p.w.3 and some of the villagers including p.ws. 1, 2, 4, 0, 6 and 9 decided to renovate an old well called Kainthakna. Accordingly in the evening of 30-5-1965 they started digging the well. At about 6 a.m. on 31-5-1965 they resumed digging. At that time the Appellant arrived at the spot with an axe. He challenged the villagers as to why the dug-out earth was being thrown on his adjacent land. P.w.3 replied that the particular land on which earth was being thrown belonged to the Government and it was open to the accused to get it measured. P.w.3 used abusive language and asked the accused to get out. The accused gave a blow with the axe on the left side back of p.w.3. While be aimed further blows, p.w.3 obstructed the same with the help of a small bamboo, but the blows fell on the left side chin and the right leg of p.w.3. At that time deceased Joyakrushna came running to the place to save p.w.3. The accused gave an axe blow on the head of the deceased who fell down. He dealt two other blows on his left side back and right shoulder. P.w.2 came running, caught hold of the handle of the tangia and was able to snatch it away from the accused who left the place. P.w.1 went to the police station with the Choukidar (p.w.7) and lodged the F.I.R., ext. 1. P.w.3 was Bent for medical examination to Hindol hospital. As there was no doctor, he was sent to Dhenkanal hospital where his Dying Declaration was recorded by p.w.14 at 8.15 p.m. on 31-5-1965. P.w.1 went to the police station with the Choukidar (p.w.7) and lodged the F.I.R., ext. 1. P.w.3 was Bent for medical examination to Hindol hospital. As there was no doctor, he was sent to Dhenkanal hospital where his Dying Declaration was recorded by p.w.14 at 8.15 p.m. on 31-5-1965. Before the Committing Court the Appellant took the plea that he did not go to the spot of occurrence. In the Sessions Court he took the defence that on the date of occurrence while passing by the well he found that the dug-out earth was being thrown on his land. His protest went unheeded. P.w.3 asked him to get out. He instigated other villagers to assault him. P.w.2 gave him a push and he fell down. P.w.3 pressed his neck with his both bands. Joyakrushna gave him two/kicks and four fist blows. While he was trying to escape he found an axe lying nearby a heap of wood. He caught hold of the axe and brandished it. While so brandishing he repelled the attacks of the assailants and fled away. He was not in a position to say how the death of Joyakrushna and injuries on p.w.3 occurred. 3. The learned Sessions Judge accepted the prosecution case and rejected the defence story. That the death of Joyakrushna was homicidal and that he died near the well are not disputed by Mr. Acharya. He does not also challenge the finding that p.w.3 was injured there. He, however, contends that death and injuries were not caused in the manner narrated by the prosecution. The defence version of the story that the accused was assaulted by the deceased and p.ws. 2 and 3 and that in exercise of his right of private defence he brandished an axe, as a result of which the death and the injuries might have occurred, should have been accepted. 4. Before examining the validity of the aforesaid contention, it is necessary to dispose of the question whether the dying declaration of p.w.3, marked Y for identification by the learned Sessions Judge, is admissible in evidence. P.w.3 was examined by the doctor (p.w.16) who found the following injuries: (i) One incised injury to the under-lying bones over the left side of the back just i" lateral to the midline lying obliquely from above downwards. It is 5" 1' I" x bone deep, the 5th and 6th ribs were cut. P.w.3 was examined by the doctor (p.w.16) who found the following injuries: (i) One incised injury to the under-lying bones over the left side of the back just i" lateral to the midline lying obliquely from above downwards. It is 5" 1' I" x bone deep, the 5th and 6th ribs were cut. The underlying lungs was also cut and air was coming out from that wound. (ii) One incised injury 5" x 1/6" x skin deep on the left side of the neck crossing obliquely the angle of the mandible. (iii) One incised injury i" x skin deep on the back side of the right leg. injury No. (i) was grievous as the 5th and 6th ribs and the underlying lungs were cut and the air was coming out from the wound. The doctor opined that the injuries were twelve hours old. The injuries were thus very serious and one could expect the death of p.w.3 at any time. At 8'15 p.m. the dying declaration of p.w.3 was recorded by p.w.14 who was a Magistrate, First Class, at Dhenkanal, under the direction of Sub-Divisional Officer. He proved the dying declaration. Whether it is admissible in evidence or not, the fact remains that it was proved through p.w.14. We are unable to appreciate why the learned Sessions Judge marked it Y for identification and did not mark it as an exhibit. On our direction it has been marked as ext. 14. The next question is whether it is admissible in evidence. P. w, 3, who made the dying declaration, survived. As such, ext. 14 is not admissible as a dying declaration u/s 32(1) of the Evidence Act. It is, however, a former statement of p w. 3. Question is whether it is admissible for corroboration u/s 157, or for contradiction u/s 145, Evidence Act. That ext. 14 can be used for contradiction u/s 145 and for impeaching the credit of a witness u/s 155, Evidence Act, is well settled. It is only necessary to examine whether it is admissible for corroboration of the evidence of p.w.3 u/s 157, Evidence Act. Section 157, Evidence Act runs thus In order to corroborate the testimony of a witness, any former statement made by such statement relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. Section 157, Evidence Act runs thus In order to corroborate the testimony of a witness, any former statement made by such statement relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. The occurrence took place at about 6 a.m.. The statement was taken at 8.15 p.m., a little more than twelve hours after. Can the statement be said to have been made "at or about the time" when the fact of murder took place? In Rameshwar Vs. The State of Rajasthan, this expression came for interpretation. Their Lordships held that no hard and fast rule can be laid down. The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction. Applying the aforesaid test, the statement in ext. 14 was made about the time when the fact took place. The injuries caused on p.w.3 were grievous and very serious and might have resulted in death at any moment. It was just by good-luck that p.w.1 survived. He was carried to Hindol hospital. As there was no doctor available, he was removed to Dhenkanal hospital. When his condition became serious, the Sub-divisional Officer deputed p.w.14 to record his statement. In the precarious condition in which p.w.3 was, there was no opportunity for tutoring or concoction. At any rate, there is no evidence to that effect. No such question was put to p.w.14 or to p.w.3. Ext. 14 is accordingly admissible under the first part of Section 157, Evidence Act. 1 is also admissible under the second part of the section as it was made to p.w.14 who was legally competent to investigate the fact. P.w.14 was a Magistrate, First Class, and be could record the statement of any witness in the manner prescribed in Section 164, Criminal Procedure Code. The learned Magistrate followed the legal procedure and recorded ext. 14. it is, however, to be noted that ext. 14 has not been put to p.w.3. In Ramratan and Others Vs. P.w.14 was a Magistrate, First Class, and be could record the statement of any witness in the manner prescribed in Section 164, Criminal Procedure Code. The learned Magistrate followed the legal procedure and recorded ext. 14. it is, however, to be noted that ext. 14 has not been put to p.w.3. In Ramratan and Others Vs. The State of Rajasthan, the position was settled that there is nothing in Section 157 which requires that before the corroborating witness deposes to the former statement, the witness to be corroborated must also say in his testimony in Court that he had made that former statement to the witness who is corroborating him. Thus even if p.w.3 does not refer to his statement before p.w.14, ext. 14 and the evidence of p.w.14 can be used for corroboration of his evidence in Court. All these questions were fully discussed in State v. Pareswar 33 C.L.T. 1193. The same view was taken in Emperor v. Ram Sattu 6 Bom L.R. 434. Though the decision only states the conclusion without elaborate discussion we accept it as laying down the correct law for reasons already discussed. The learned Sessions Judge committed a serious error of law in not marking statement made by p.ws. 3 to p.w.14 on 31.5.1965 as an exhibit and in excluding it from consideration for corroboration of the evidence of p.w.3. 5. P.ws. 1 to 6. and 9 are the eye-witnesses. They fully support the prosecution version as to how the accused attacked the deceased and the injured p.w.3. The slight, discrepancies in their evidence were rightly ignored by the learned Sessions Judge. The defence suggestion that the deceased, p. ws. 2 and 3 assaulted the accused has been repelled by each one of them. Some reliance was placed on the evidence of p. ws. 2 and 5 speaking of the accused brandishing and swinging the axe. The statements so made do not fit in with the defence version and relate to a fact subsequent to the accused killing the deceased and causing injuries on p.w.3. Mr. Acharya placed strong reliance on the evidence of p.ws. 11 and 12 as supporting the defence version. These two persons were examined by the prosecution as seizure witnesses. At no earlier stages before their examination in the Sessions Court they had disclosed that they had seen the occurrence and knew about the incident. Mr. Acharya placed strong reliance on the evidence of p.ws. 11 and 12 as supporting the defence version. These two persons were examined by the prosecution as seizure witnesses. At no earlier stages before their examination in the Sessions Court they had disclosed that they had seen the occurrence and knew about the incident. Both of them were present when the F.I.R. was being written at the instance of p.w.1. The F.I.R. is consistent with the prosecution story. If really p.ws. 11 and 12 were eye-witnesses to the occurrence and the incident happened in the way as suggested by the accused, they should have told p.w.19 (the A.S.I. who recorded the F.I.R.) that the narration of the story by p.ws. 1 in the F.I.R. was untrue. P.w.12 stated that they had disclosed the story to p.w.19 who denied the fact. Intrinsically also p. ws. 11 and 12 are unreliable. P.w.11 narrates the whole story supporting the defence version but stops short at the crucial moment as to how the deceased was murdered and p.w.3 got the injuries. One can appreciate the stand of the accused that the death and the injuries might have been caused by the axe while he was whirling the same in self preservation. But it was easy for p.w.11 to see that as a result of the whirling of the axe the deceased was killed and p.w.3 received injuries. Purposely this part of the story has been suppressed to protect the accused from the charge of murder. The aforesaid facts and circumstances lead to the irresistible conclusion that p.w.11 was not present at the spot as deposed to by the eye-witnesses p.ws. 1 to 6 and 9. Same is the criticism against p.w.12 who even stated that the moment there was an attack by p.w.3 and the deceased on the accused, he left the place and had not seen what happen next. The learned Sessions Judge rightly discarded the evidence of pws. 11 and 12 as unreliable. We agree with him that the eye-witnesses p. Ws. 1 to 6 and 9 are witnesses of truth and the prosecution story is true. Prosecution case is further supported by the fact that the accused came with an axe to the spot. P.ws. 8 and 10 are independent witnesses. 11 and 12 as unreliable. We agree with him that the eye-witnesses p. Ws. 1 to 6 and 9 are witnesses of truth and the prosecution story is true. Prosecution case is further supported by the fact that the accused came with an axe to the spot. P.ws. 8 and 10 are independent witnesses. They said that at about sunrise time the accused approached each one of them separately complaining to them about the villagers putting earth on his land. They pleaded their inability for intervention. Both of them saw the accused carrying a tangia with them. P.w.8 further identified M.O.I. as the axe which the accused was carrying. He referred to a specific identification mark on this tangia. P.w.3's version also gets corroborated by his former statement (ext., 14). Though p.w.3 survived, he was in a very critical moment at the time when he made the statement. In ext. 14 he refers to three blows given by the accused on him-one on the head, another on the back and a third on the right leg. The head injury refers to the injury on the chin. He similarly stated that the deceased was given blows on the forehead and neck. The former statement substantially corroborates the evidence of p.w.3. 6. Taking an overall picture of the entire evidence, there can hardly be any doubt that the prosecution story is true. The accused killed the deceased and caused injuries on p.w.3. The conviction on both the sections are well founded. No separate sentence need, however, be passed u/s 326, Indian Penal Code. 7. Subject to the aforesaid modification in the sentence passed u/s 326, Indian Penal Code, the appeal fails and is dismissed. Appeal dismissed and Sentence modified. Final Result : Dismissed