JUDGMENT Harinandan Singh, the sale appellant in the connected appeals, being Criminal Appeal Nos. 388 and 425 of 1969 ( one of them being from jail), has been convicted under Section 302, Indian Penal Code and has been sentenced to the extreme penalty of death for murdering one Balmiki Mandal on the 22nd of June, 1967, at about 7 or 8 P.M. in a lonely place near or abutting the Dumaria Minor (distributary) of the Kosi canal. Hence this reference under Section 374 of the Code of Criminal Procedure. 2. The condemned prisoner was also convicted under Section 379, Indian Penal Code for having committed theft of cash, watch and bag by taking the same out of the possession of the said Balmiki Mandal, the deceased, and he has been sentenced to undergo rigorous imprisonment for three years under that section. 3. The first information report (Ext. 4) in this case was drawn upon the basis of the written report (Ext. 2) of P.W. 2, Punyanand Mandal, the Mukhia of Barah Para Gram Panchayat. The circumstances in which the said written report of the Mukhia (P.W. 2) was brought into existence were as under: At about 8 P.M. P. W. 2 who is a resident of village Dumaria was returning from Chakardaha Hat to his village, when he heard an uproar near Dumaria Minor (a sub-distributary canal) and on hastening to that place, which was east of the canal, he found Rajanand Mandal (P. W. 7) and some others assembled there. P.W.7 told him that a person was lying unconscious and injured and the person who had injured had been captured by P. W. 8 Karey Singh and P.W.10 Lakhan Singh, both of village Dumaria. Thereupon, it is alleged, attempts were made at reviving an apparently a dead person, who, it is said on regaining consciousness made his statement which was recorded by the Mukhia (P.W. 2) on a piece of paper in the light of a lantern which was meanwhile fetched from the village. The statement so recorded has been used in this case as a dying declaration of Balmiki Mandal, and has been marked as Ext. 1. As Balmiki Mandal could not use his hand to put his signature on the said statement, he is alleged to have given his left hand thumb impressions at two places on the said document. The statement so recorded has been used in this case as a dying declaration of Balmiki Mandal, and has been marked as Ext. 1. As Balmiki Mandal could not use his hand to put his signature on the said statement, he is alleged to have given his left hand thumb impressions at two places on the said document. The case against the appellant-accused, in this case, primarily rests on the said dying declaration, and according to the said dying declaration, the appellant is alleged to have picked up friendship with the deceased Balmiki Mandal, who was in service at Purnea Court station. After they had become friends, the appellant is alleged to have requested the deceased to settle the marriage of the appellant's unmarried sister with that of the unmarried brother of the deceased, but before negotiations could be complete, the appellant requested Balmiki Mandal, the deceased to 'accompany him his home and see his sister himself. For this purpose it is alleged both of them started from Purnea Court to Forbesgunj by train and thereafter they together started to walk down to village Dumaria and when they reached near the place of occurrence, the appellant, it is alleged, suddenly attacked the deceased with a chhura and caused multiple injuries on his person which resulted in his death. The deceased is alleged to have offered some resistance and raised hulla crying 'run up,' 'run up.' The dying declaration further recites that the appellant snatched away the money which the deceased was carrying with him for purchasing a radio set for his brother-in-law (sister's husband) at Bettiah where his uncle (father's brother) was in service. The money which was snatched away by the appellant from the possession of Balmiki Mandal was, however, according to dying declaration, handed over to a tall person of dark complexion wearing a white shirt, who having got the money immediately filed away. The plastic bag containing some personal Effects and the wrist watch of the deceased were also taken away by the appellant. The prosecution case further is that the appellant on being interrogated gave out his name to be Harinandan Singh, son of Rekha Dass of village Bhargawan police station Raniganj, and the fact of the appellant having made extra judicial confession, as above, was mentioned in Ext. 2, the written report submitted by P. W. 2. According to the prosecution when P. Ws. 2, the written report submitted by P. W. 2. According to the prosecution when P. Ws. 8 and 10 on hearing hulla were (Sic) proceeding towards the place of occurrence, they had seen the appellant hurrying away with the plastic bag in his hand whereupon they gave him two lathi blows on his back and he fell down and was at once apprehended. Thereafter, the Chaukidar of the village was called for by the Mukhia, and the appellant was made over to him. Rekha Dass, the father of the appellant was also seen at the place of occurrence, and on suspicion, he was also taken into custody and made over to the Chaukidar. As the condition of Balmiki Mandal who had multiple injuries on his person, as said above, was extremely critical, the party which had assembled there brought a bullock-cart and loaded him thereon and marched the appellant and his father along with the bullock-cart on their way to the police station duly escorted by Gonar Tatma and Panchlal Chaukidars. The statement of the deceased (Ext. 1) "and Ext. 2, the written report of the Mukhia as also the plastic bag and the wrist watch were also sent by the Mukhia (P. W. 2) along with the said party. The Mukhia, it may be mentioned had taken the precaution of sending one Girjanand Mandal to the police station immediately on his arrival at the place of occurrence for bringing the police authority on the spot. It appears that Girjanand Mandal had gone on a cycle to the police station and was coming back with the police party on a Bus, when they were met by the Chaukidars and others of the party, who were marching along with the appellant and his father and the dead body of Balmiki Mandal on a bullock-cart. The endorsement by the Mukhia as to the exact time when Balmiki Mandal died as made by him on Ext. 2 has been marked as Ext. 1/2, According to it, Balmiki Mandal died at about 1 A.M, on the 23rd of June, 1967, in other words, though he had received the injuries on his person, at about 8 P. M., the case of the prosecution is that he survived for nearly four to five hours. Damodar Prasad Singh (P.W. 12), the then Officer -in charge of Narpatganj police station received the written report (Ext. Damodar Prasad Singh (P.W. 12), the then Officer -in charge of Narpatganj police station received the written report (Ext. 2) of P. W. 2, the Mukhia at the police station at 1-30 A. M. on the 23rd of June, 1967, along with the appellant accused and his father in his custody and he also received the material exhibits, the plastic bag and the other articles including the wrist watch and the dying declaration (Ext. 1). As already mentioned, he drew up the formal first information report on the basis of the written report (Ext. 2) and thereafter held inquest over the dead body and prepared the inquest report (Ext.3/2). After examining the P.-Ws. who had accompanied the dead body at the police station itself and after preparing the seizure list (Ext. 5) in respect of the material exhibits, he examined the appellant as well, and it may be noted that he found some 'injuries on his person and drew up an injury report and referred the appellant to the Medical Officer of Narpatganj State Dispensary. Thereafter he sent the dead body for post-mortem examination to the Sub-divisional Hospital, Araria and the post-mortem was held by Dr. S.S. Prasad, who was the Deputy Superintendent at the State Dispensary, at 8 A.M. on the 24th of June, 1967. His evidence before the Committing Court has been tendered under Section 509 of the Code of Criminal Procedure. In the morning of the 23rd of June, 1967, at about 7 A.M. P.W. 12, the investigating officer left for the place of occurrence where he reached at 8.45 A.M. Though on his evidence it is possible to construct the topography of the place of occurrence, it is unfortunate that the investigating officer did not prepare a sketch map of the locality inspected by him. Be that as it may, it appears that he found blood at a place which is adjacent east of the Bandh of Dumaria Minor Canal, which runs from north to south, and close by he found three khantas. He also noticed a pagdandi at a distance of n- yards south of that place leading towards Kamla Dhar. (Sic) Plot No. 5971 having paddy crop and which was adjacent east of the aforesaid khantas and north of a particular jute field the crop whereof was noticed by him as waist high. He also noticed a pagdandi at a distance of n- yards south of that place leading towards Kamla Dhar. (Sic) Plot No. 5971 having paddy crop and which was adjacent east of the aforesaid khantas and north of a particular jute field the crop whereof was noticed by him as waist high. He found the crops of the jute field alone trampled upon and no other crop in the vicinity bore any mark of trampling. Nonia Tola appertaining to village Dumaria from which Tola P.Ws. 8, 10 and some other witnesses came was only at a distance of 500 yards from the place of occurrence. During the progress of the investigation on the 24th of June, 1967, the investigating officer duly received the injury report of the appellant, and also the post-mortem examination report, and after forwarding the articles containing blood like marks to the Forensic Laboratory through the Sub-divisional Magistrate under a forwarding letter (Ext. 6), he submitted charge sheet against the appellant alone. After the usual commitment proceedings, the appellant was committed to the Court of Sessions to stand his trial under Sections 302 and 379, Indian Penal Code with result, mentioned above. 4. The defence as gathered from the various suggestions given to the P.Ws. during their cross-examination and the statements of the appellant under Section 342 of the Code of Criminal Procedure was that the appellant has no manner of concern with the deceased Balmiki Mandal, who was not even known to him. According to the defence, the appellant was a resident of Pack para within police station Raniganj, district Parnea and one of his brothers, namely, Jamuna Singh was married in the house of Raghubir Singh of Nonia Tola of village Dumaria. His further case was that in the morning of the date of occurrence, he and his father had come to attend some Puja at the house of Raghubir Singh and that at the time of occurrence, at about 7 P. M., he had gone to ease himself near the Minor Canal and while returning there, he heard a hulla and ran towards that side. He claimed to have seen a miscreant assaulting another person, presumably Balmiki Mandal, and the victim was raising hue and cry and as soon as the appellant himself reached there, the miscreants gave some lathi blows on him whereafter the miscreants ran away towards the west of the Canal. He claimed to have seen a miscreant assaulting another person, presumably Balmiki Mandal, and the victim was raising hue and cry and as soon as the appellant himself reached there, the miscreants gave some lathi blows on him whereafter the miscreants ran away towards the west of the Canal. It was at about that time that some persons coming from the opposite direction, that is, from the eastern side apparently from Nania Tola apprehended him and brought him down to the place of occurrence where as directed by the Mukhia (P. W. 2), he was taken into custody and sent to the Police Station. He denied to have been caught with the plastic bag or the wrist watch which are alleged to have been belonged to the deceased Balmiki Mandal. The defence case further was that Balmiki Mandal the deceased was unconscious throughout and never regained his senses and the alleged dying declaration was never made by him. It was suggested that the Mukhia in collusion with the investigating officer (P. W. 12) and some of the P. Ws. who are residents of Nonia Tola has forged and fabricated the dying declaration with a view to avoid any Suspicion for the murder of Balmiki Mandal against any resident of village Dumaria. The appellant denied to have made any extra judicial confession, as alleged by the prosecution before any of the prosecution witnesses. 5. The prosecution case, according to the learned trial Judge rests on four factors, namely, (1) extra judicial confession by the appellant as deposed to by P. W. 2 and other prosecution witnesses; (ii) the dying declaration (Ext 1): (iii) evidence of P.W. 2, before the Sessions Judge; and (iv) those of P. Ws. 7, 8, 10 and 11 before the Committing Magistrate. 6. According to the evidence of the Doctor, who had held the post-mortem over the dead body of Balmiki Mandal, the following injuries were found on him. (i) Incised wound tailing downwards and outwards 3 "x 2"x 2" over front of middle of left side neck clearly cutting the left common carotid artery, jugular veins and nerves. (ii) Incised wound-tailing upwards and downwards 11/2" x 1" x 1/2" over middle of right side neck on front. (iii) Lower part of nose cleanly cut into two pieces. (i) Incised wound tailing downwards and outwards 3 "x 2"x 2" over front of middle of left side neck clearly cutting the left common carotid artery, jugular veins and nerves. (ii) Incised wound-tailing upwards and downwards 11/2" x 1" x 1/2" over middle of right side neck on front. (iii) Lower part of nose cleanly cut into two pieces. (iv) Three incised wounds tailing upwards and downwards- 11/2" x 1/2" 1/3 1” x 1/3” x and 1” x ½” x 1/3” each over right cheek. (v) Incised wound tailing upwards and, backwards 21/2"x 1/2x 1/3” over left cheek. (VI) Incised wound tailing upwards and outwards 1"x 1/4" x 1/4 " over left side chin. (vii) Incised wound tailing upwards and onwards 3" 1" x 1/3" over inner aspect middle of left forearm. (viii) Incised wound tailing upwards and onwards 1" x 1/2" x 1/4" over upper Dart back left arm. (ix) Incised wound tailing upwards and outwards 2" x 1/4" x 1/4" over front of upper part left arm. (x) Incised wound tailing upwards and onwards 1" x 3/4" x 1/4"over outer aspect lower part left arm. (xi) Incised wound tailing upwards and to the left 2" x 1/4" x 1/4" over front middle centre of neck- (xii) Incised wound tailing back and to the right 2" x 1" x scalp deep cutting the pericraniun over centre vault of scalp. (xiii) Bruise 1" x 1" over upper part left shoulder blade. (xiv) Abrasion 2" x 2" over upper part right shoulder blade. According to the doctor's evidence before the Committing Magistrate, which as mentioned already has been tendered under Section 509 of the Code of Criminal Procedure, injuries nos. (i) to (xii) were caused by a sharp cutting weapon, such as, a Chhura and injuries nos. (xiii) and (xiv) were caused probably by fall and death in his opinion was due to shock and haemorrhage as a result of injuries mentioned above. (i) to (xii) were caused by a sharp cutting weapon, such as, a Chhura and injuries nos. (xiii) and (xiv) were caused probably by fall and death in his opinion was due to shock and haemorrhage as a result of injuries mentioned above. It is important at this place to set out in extenso the statement of the doctor made in course of his cross-examination because not only much reliance has been placed on that part of the medical evidence, but it was on account of what the doctor stated therein read in the context of what we found observed in recognised books on medical jurisprudence that the doctor had to be summoned again in this Court, and certain questions were put to him by way of affording him an opportunity to examine the opinion expressed by him in the light of what appears to be stated in recognjzed books of medical jurisprudence. The doctor stated in his cross-examination as follows :- “Injury no. 1 is sufficient in ordinary course of nature to cause instantaneous death. It is not possible for a man in my opinion, to make any statement after receiving the aforesaid injuries." 7. Mr. Avadhesh Nandan Sahay, learned counsel in support of the appeals and against the reference has strenuously contended that in view of the medical evidence as to the necessary result of the injuries inflicted on the deceased, it was highly unsafe to rely on the dying declaration in this case. On behalf of the State Mr. Lala Kailash Bihari Prasad, on the other hand, has asked us to ignore the aforesaid opinion of the doctor in this case in view of the several instances of volitional acts having been committed who are victims of as serious injuries, as had been inflicted on Balmlki Mandal, the deceased which instances find collected in Modi's Medical jurisprudence and Toxicology (16th Edition, at pages 252-53 and at page 249 of the 11th Edition of the same book as also in Taylor's Principles and Practice of Medical Jurisprudence, Volume I, 10th Edition, at pages 306-307). It was urged that according to Taylor and Modi's jurisprudence the instances are not unknown when persons whose carotid or common carotid artery are cut of remaining conscious for several hours (sic) after the injuries were inflicted, and of having performed various volitional acts including walking a little distance and making statements as to the cause of their death. In such circumstances, the advice which Modi has given to doctors required to give opinion in such cases is that they should always give a guarded reply and not a categorical answer as has been given in the instant case that on account of injury no. (1) the victim, namely, Balmiki Mandal must have met with instantaneous death or that it was not possible for him to have made any statement after receiving that injury along with the other injuries on him. In view of what the Supreme Court has pointed cut in the case of (1) Sunderlal V. The State of Madhya Pradesh (A.I.R. 1954 S.C. 28), that the conviction of an accused person should not be mainly based from the passages from the text bock of Modi on Medical jurisprudence and Toxicology unless those passages had been formally put to the doctor concerned, we thought it fit and proper to summon Dr. S. S. Prasad for further examination in this Court in the light of what finds mentioned in Modi and Taylor's Medical Jurisprudence, as mentioned above Dr. S.S. Prasad was thus again examined on the 11th of February, 1970, and at this stage it will be convenient to set out the questions put to him and the answers which he gave. S. S. Prasad for further examination in this Court in the light of what finds mentioned in Modi and Taylor's Medical Jurisprudence, as mentioned above Dr. S.S. Prasad was thus again examined on the 11th of February, 1970, and at this stage it will be convenient to set out the questions put to him and the answers which he gave. The first question that was put to the doctor was that did he still subscribe to the opinion contained in his deposition before the Committing Magistrate, which has been quoted above and when he had answered' that question in the affirmative, he was asked to go through what is written in Modi's Medical Jurisprudence and Toxicology, 16th Edition, at pages 252-253 and the earlier 11th Edition at page' 249 and Taylor's Principles or Medical Jurisprudence, Volume I, 10th Edition, at pages 306-307 and was asked the following questions and he gave the answers thereof which are given as under : "Q. Now that you have read passage in the aforesaid books in regard to the possibility of volitional acts by victims of such injuries as you have' described in your post-mortem report, do you think that the opinion which you expressed before the Committing Court, in the facts of this case, requires a less categorical opinion than what you had expressed before the Committing Magistrate? Ans. I have no comment to make about the cases cited in the aforesaid books, to which my attention has been drawn I but I have expressed my opinion on the findings which I got at the time of doing the post-mortem examination. I, accordingly, stick to the opinion which I expressed before the Committing Magistrate that the Victim must have died instantaneously and it was not possible him to make any statement after receiving the injuries on his person. Q. SO far as the power of speech is concerned, we take it that it depends on the local chords. A. Yes. Q. Were the vocal chords intact in this case? A. Yes. Q. In that case, if the vocal chords were intact, what was the difficulty for the victim making a statement or talking, as is the prosecution case? Ans. It was not possible for him to speak even if the vocal chords were intact because he must have lost consciousness immediately. A. Yes. Q. In that case, if the vocal chords were intact, what was the difficulty for the victim making a statement or talking, as is the prosecution case? Ans. It was not possible for him to speak even if the vocal chords were intact because he must have lost consciousness immediately. Q. What, according to you, was the effect of injury No. 12, as described in your post-mortem report? Ans. That produced congestion of membrance and brain substance and, therefore, produced unconsciousness, Q. What was, according to you, the effect on the consciousness of the victim on account of the other injuries on him, apart from injury No. 12, to which reference has already been made above? Ans. Cumulatively, they might have produced shock and death. Q. What is your opinion in regard to the cumulative effect of the injuries en the power of speech or consciousness of the victim? Ans. They might have made him speechless and unconscious." The above questions were put by the Court and the above answers were elicited from the answers given by the doctor to the questions put by the Court. Therefore. Mr. Lala Kailash Bihari Prasad for the State Cross-examined the witness and the witness, it appears hardly budged from his previous stand. He, in fact, asserted that in his opinion, keeping in view the nature of the injuries. Brocao’s area (speech centre of the brain), must have been affected. To some questions put to him by the appellant's lawyer, the witness has given some answers which go to substantiate his view as expressed above to questions put to him by the Court. For instance, he stated that evagus nerve runs between the internal jugular vein and the common carotid artery implying thereby that as in the present case, both the internal jugular veins and the common carotid artery having been cleanly cut the evagus nerve also taken to have been cut and if that was so, the opinion of the doctor is that the heart beating might stop. The witness was referred to Dr. Sir Stanley Dabidson's book called the Principles & Practices of Medicine (5th Edition, page 35 ) and what was stated by the learned author under the heading 'Sudden Deaths' and was asked the following question: "Q. Failure of cerebral circulation will lead to unconsciousness within ten seconds and death in a few minutes. The witness was referred to Dr. Sir Stanley Dabidson's book called the Principles & Practices of Medicine (5th Edition, page 35 ) and what was stated by the learned author under the heading 'Sudden Deaths' and was asked the following question: "Q. Failure of cerebral circulation will lead to unconsciousness within ten seconds and death in a few minutes. Do you agree with this? Ans. Yes-I agree with that opinion. Q. The common carotid artery being cut along with jugular vein, will there be a failure of cerebral circulation? Ans. Yes” We have given above verbatim statements made by the doctor in answers to questions put to him either by the Court or by the lawyers for the parties. In our opinion, the doctor's evidence in this case leaves no manner of doubt that the cumulative effect of all the injuries inflicted on Balmiki Mandal, the deceased, must have caused an unconsciousness, if not immediate death. The doctor, has given, in our opinion, straightforward answers and has also given reasons why it will be unsafe to place reliance on one or two instances referred to in Modi and Taylor's Medical Jurisprudence. For instance, the doctor in meeting questions stated that the extent of the injury is not given in either of Modi or Taylor. Here in this case the opinion of the doctor as given by him is based On his finding as recorded in the postmortem examination on the dead body of Balmiki Mandal. In such circumstances, we find no reason to discard or ignore the evidence 'of the doctor as has been urged rather strenuously on behalf of the State. It follows, therefore,' that no reliance can be placed on Ext. 1, the dying declaration. 8. Apart from the evidence of the doctor, which in our opinion, wholly discredit the dying declaration and which has been discussed above, we find that there is intrinsic material in the dying declaration itself which goes to make its genuineness doubtful. Even if it were assumed that by the efforts of the persons who bad collected at the place of occurrence, such as, P. Ws. Even if it were assumed that by the efforts of the persons who bad collected at the place of occurrence, such as, P. Ws. 2, 8 or 10, Balmiki Mandal who was first found apparently dead and in an unconscious state was able to regain consciousness, it is very difficult to believe that in such a state of his condition with all those multiple injuries on him particularly the head injury resulting in congestion of the membrance of the brain, and blood oozing our profusely from the clean cut of the common carotid artery and the jugular veins, and the clean cut of his nose and other incised injuries on his face it would have been either natural or practicable for him to have given such meticulous details as appeals to have been given by him in the dying declaration (Ext. 1). Not only does Balmiki Mandal mention his parentage, residence with Police Station district etc., but he gives, in fact a picture of his whereabouts and states as under: " "I am in service at Purnea Court Station. I was making preparation for going to Bettiah from there. My uncle (father's brother) is in service at Bettiah. 1 had Rs 500/-in cash with me with which I wanted to purchase a radio (set) for my brother-in-law (sister's husband). At Purnea Court I met this person whose name is Harinandan. He said that he was Kurmi by caste. I am also Kurmi by caste. He cultivated friendship with me and said, 1 have unmarried sister and your younger brother is unmarried. So (I request you to) accompany me to my house to see my sister.' In response to his request to see (his sister) I came to Forbesganj and then have come up to this place on foot. When I came near the canal here he attacked me with chhura. I offered resistance and cried saying, 'run up, run up'. He (Harinandan) snatched my money and gave it to a tall person of dark complexion who was wearing a white shirt and who (thereafter) fled away. He (Harinandan) hit me with chhura several times. At last I fell down. I am making this statement after regaining some consciousness. I have got too much of pain in my hand. I can not write anything. 1 have a friend named Jagdish Sah at Purnea Madhubani. (Please) inform him. He (Harinandan) hit me with chhura several times. At last I fell down. I am making this statement after regaining some consciousness. I have got too much of pain in my hand. I can not write anything. 1 have a friend named Jagdish Sah at Purnea Madhubani. (Please) inform him. I cannot speak any longer, take me to the Police Station or to the hospital very soon. I had a bag and a watch also with me." The statement admittedly was made in his own village, but we have given its English version from the paper-book of this case. We find it difficult to believe that a man with so many injuries on his person in such a critical condition as admittedly Balmiki Mandal, such a coherent statement, as quoted above, could have been made by him. One would have expected after he had regained consciousness to somehow answer to the questions put by the persons, who had collected around him, may be mentioned in categorical terms or otherwise the names of the assailants and the immediate cause of his death. Indeed strictly speaking under Section 32 (1) of the Evidence Act, it is only the statement as to the cause of death or as to any of the circumstances of the transaction which resulted in his death which can be said to be admissible. Here in Ext. 1 we have not only the full particulars like parentage, service and whereabouts of the deceased, but we have even the carious statement that he was making the statement after regaining some consciousness. Though it is not necessary in all Cases that a dying declaration should be verbatim and in extenso exactly in the words of the person who makes the statement, but the very fact that the statement contains the aforesaid sentence that the deceased was making the statement after regaining some consciousness is indicative of the fact that lot of interpolations have been put in the statement made by Balmiki Mandal, the deceased. It is significant to note that neither the man of dark complexion in white shirt to whom five hundred rupees was handed over by the appellant, and who had fled away with that five hundred rupees; nor the weapon of assault had been found in this case. It is significant to note that neither the man of dark complexion in white shirt to whom five hundred rupees was handed over by the appellant, and who had fled away with that five hundred rupees; nor the weapon of assault had been found in this case. So far as no finding of the weapon of assault is concerned, it may be due to the perfunctory nature of the investigation, but it is rather curious that the appellant with his motive of highway robbery, would part away with the booty to at unknown person and it may be observed that there is nothing on the record to connect that dark complexion man in white shirt Rekha Das, the father of the appellant. For all these reasons, we are satisfied that no reliance whatsoever can be placed on Ext. 1, the dying declaration in this case. If the dying declaration could have been said to be above board, the conviction of the appellant could have been easily sustained on that piece of evidence alone, and in that case it may not have been necessary to seek any corroborative evidence. But as the' dying declaration is not free from doubt, as explained above it cannot be relied upon and the conviction of the appellant cannot be sustained on the same. 9. It was, however, urged on behalf of the prosecution that there is no evidence of any motive or animus either in the P.Ws. or in the investigating officer to bring into existence a fabricated dying declaration. In our opinion, there is little force in this contention. The dying declaration may not have been a pure fabrication in the true sense of that word, yet if the prosecution fails to establish that it was based on a statement made by the victim who later succumbed to his injuries, (Sic) which might have been drawn up either on the basis or on the belief of one or more of the prosecution witnesses. In this case there can be no doubt that the appellant was apprehended by P. Ws. 8 and 10 within a very short distance of the place of occurrence and shortly after the cries of the dying man, namely, of Balmiki Mandal was heard. In this case there can be no doubt that the appellant was apprehended by P. Ws. 8 and 10 within a very short distance of the place of occurrence and shortly after the cries of the dying man, namely, of Balmiki Mandal was heard. It is that factor taken along with the interpretation which the prosecution witnesses might have felt inclined to put on such statements as the appellant is alleged to have made to them after his apprehension, might have justified the prosecution witnesses, in particular P.W.2 to come to his own conclusion that the appellant was the assailant and had killed Balmiki Mandal. In the circumstances of this case, therefore, merely because it has not been established positively by the defence that either the Mukhia (P.W. 2) or the other prosecution witnesses had some animus against the appellant, the so-called dying declaration (Ext. 1) cannot be elevated to the status of a real and genuine dying declaration. The evidence of P.W. 2 (vide paragraph 13) is that the injured was speaking in a feeble voice in ordinary common Hindi and that he had recorded his statement in his language with a little variation in some words. The fact, however, that Ext. 1 was not in the exact words used by the injured person, can, however, be no reason to discard this end, but the real difficulty, as discussed above, is that we are not convinced that there is any truth in that part of the evidence of the prosecution witnesses that Balmiki Mandal the deceased had regained consciousness at any time as alleged. According to P. W. 2, when he reached the place of occurrence, he found the injured lying unconscious and he also found that water which was being given did not go inside his stomach, but according to him, it started going after some time and when water was also poured on his head, the injured is alleged to have regained consciousness about ten minutes after the arrival of P.W. 2. This evidence, in our opinion, is emphatically inconsistent with the medical evidence to which a reference has already been made, in view of the number and nature of injuries on the deceased, and the straightforward evidence given by the doctor in this case, we are inclined to prefer the evidence of the doctor to that either P.W. 2 or the other prosecution witnesses examined in this case. 10. Great reliance was placed on behalf of the State on the so called extra judicial confession made by the appellant to P.W. 2, the Mukhia and to some of the other witnesses. Apart from the fact that the said extra judicial confession considered, as a whole, in the light of certain facts to which reference will be made hereafter, it appears to us that the non-production of the station diary entry which must have been got recorded by Girijanand, in our opinion, greatly detracts from the value which can be attached to the value regarding the so called extra judicial confession. P. W. 2, the principal witness to whom the extra judicial confession is alleged to have been made has no doubt stated that he had sent Girijanand on a cycle to run to the Police Station before he had recorded the statement of the injured, but after the injured had regained his senses. It is also true that he has at first stated that till 'the time he had sent Girijanand to the Police Station, it was not known who was the assailant of the injured, but he immediately added that Lakhan (P. W. 10) had told him before he sent Girijanand that Harinandan accused had killed the deceased. It is extremely difficult to believe if Girijanand left for the Police Station after the aforesaid information had already been given by P. W. 10 to P. W. 2 in the presence of Girijanand and all others, the fact that Harinandan, the present appellant was the assailant of the injured per son, would not have found place in the in formation which Girijanand had lodged with the police. Indeed in the circumstance disclosed on the evidence of this case, that information which was lodged by Girijanand was really the first information in this case. For no apparent or valid reason the record of the said information has been withheld. Indeed in the circumstance disclosed on the evidence of this case, that information which was lodged by Girijanand was really the first information in this case. For no apparent or valid reason the record of the said information has been withheld. In our opinion, from the non-production of that station diary which contained the information conveyed by Girijanand to the police at the earliest opportunity an adverse inference can easily be drawn against the prosecution and in the circumstances, we are inclined to accept the argument advanced on behalf of the appellant that document has been withheld only because it did not contain the name of Harinandan Singh, the appellant or it was mentioned therein that some unknown person had assaulted Balmiki Mandal who was lying seriously injured. Though there is no obligation on the prosecution to examine all and every person as prosecution witnesses in support of its case, in the circumstances of this case, it is rather curious that Girijanand has not been examined even though as has been deposed to by the prosecution witnesses it was Girijanand who went to the police first and brought the police when the dead body of Balmiki Mandal along with the appellant and his father were being taken to the Police Station. In this connection, reference may be also made to the evidence of P.W.7 Rajanand Mandal wherein he has stated that the injured Balmiki Mandal was also saying on intervals 'Usko Lao' without naming any body though Harinandan was confronted with Balmiki at that time. It is true that this witness had made no such statement before the Committing Court, but that is, in our opinion, no reason why this part of his evidence should not be accepted. 11. Now as to the alleged extra judicial confession, according to P.W. 2, when he questioned the appellant, he stated that Balmiki, the deceased had first assaulted him and then he had hit with chhura. According to P. W. 7, who also claims to have interrogated the appellant, the appellant gave a slightly different version. At first the appellant stated that some people had injured both him as well as the injured, but later on when pressed further, the appellant stated that the injured had assaulted him first whereon he retaliated by assaulting the injured. The appellant, however, according to P.W. 7 did not mention any weapon in his so-called confession. At first the appellant stated that some people had injured both him as well as the injured, but later on when pressed further, the appellant stated that the injured had assaulted him first whereon he retaliated by assaulting the injured. The appellant, however, according to P.W. 7 did not mention any weapon in his so-called confession. P.W. 8 is, however, wholly silent on this question. It may be pointed out that it was P.W. 8 who with the help of P.W. 10 was able to apprehend Harinandan, the appellant and bring him near the injured person. P. W. 10 has, however, deposed to some sort of confessional statement having been made by the appellant in his deposition before the Committing. Court though he is wholly silent on this question in his deposition before the Sessions Judge. It followed, therefore, that the Extra judicial confession in this case, if taken as a whole, as it must be, suggests some sort of mutual affray between the appellant and the deceased which is not the prosecution case. The theory of mutual affray, in our opinion, finds support from injuries having been found on the person of the appellant. Those injuries have been, however, sought to be explained away by the prosecution on the ground that the if juries were caused by the lathi blows given by P.Ws. 8 and 10 while trying to apprehend the appellant. That, in our opinion, is hardiy acceptable because we know from the evidence of P.W.12, the investigating officer that not only that he found injuries on the person of the appellant, but he found the injuries of such a nature that the appellant had to be forwarded to the hospital for examination and treatment. Indeed, the investigating officer has admitted that he received the injury report of the injuries on the person of the appellant along with the post-mortem report on the same day, but curiously again the prosecution has withheld the injury report and bas not produced the same. This is another' instance of the prosecution withholding a material piece of evidence which would have drawn considerable light on the truth of the case. This is another' instance of the prosecution withholding a material piece of evidence which would have drawn considerable light on the truth of the case. If, for instance, there were incised injuries on the front portion on the body of the appellant, the theory of mutual affray and each party using their respective chhuras freely would have been easily substantiated and in that case it would have been very easy to say that the prosecution had not come to court with the true version. In the circumstances, again this is a case in which some sort of adverse inference can be drawn against the prosecution for not producing the injury report, admittedly received by the investigating officer, of the injuries on the person of the appellant. There is, however, some indication on the medical evidence that the right hand of the deceased was free and he must have utilised the same. Of the fourteen injuries nos. 13 and 14, as indicated above, were caused in the opinion of the doctor by fall. None of the remaining twelve injuries was on any portion of the right hand either on the forearm, or the upper part of the right arm. On the other hand, from injury no. 2 which is the injury on the right side of the neck on the front and injury no. 4 which is comprised of three incised wounds on the right cheek all the rest of the injuries are on the left and most of them on the left fore-arm and on the upper part of the left-arm. The location of the injuries on the person of the deceased, in our opinion, quite dearly suggests that 'while the deceased was warding off the attack with his left hand, it may be that he was using his right hand for making such assault on the appellant as might have been possible, because of the deceased was wholly unarmed, one would have expected that he warded off the attacks on his vital parts such as, neck, nose etc. with both hands. This is, in our opinion, in support of the theory that there was such a mutual affray between the appellant and the deceased: and this is what in substance the extra judicial confession amounts to. with both hands. This is, in our opinion, in support of the theory that there was such a mutual affray between the appellant and the deceased: and this is what in substance the extra judicial confession amounts to. In the circumstances, as this which is not the prosecution case, it is difficult to apportion (sic) the part between the two contestants and on the record it is difficult to say if the appellant had exceeded his right of private defence. 12. In view of the above discussion, it must follow that the evidence of the prosecution witnesses including that of P.W.2 stands falsified in major particulars, and in such circumstances, it will be unsafe to place reliance on the residue of their evidence and sustain the conviction of the appellant. 13. In the result, the appeals preferred by the appellant must succeed and the reference; be discharged. The appellant is entitled to the benefit of doubts and accordingly his conviction under Section 302 or under Section 379 of the Indian Penal Code must be set aside. The appellant will be set at liberty forthwith, unless he is wanted in connection with some other case. Appeal allowed