JUDGMENT : G.K. Misra, C.J. - The Appellant has been convicted u/s 302, Indian Penal Code, for causing the death of Dayanidhi Mohanty, and sentenced to death. He has also been convicted u/s 323 Indian Penal, Code for causing hurt to Indramani Mahakud (p.w. 1), u/s 324, Indian Penal Code for causing grievous hurt to Santilata Mohanty and Usamani Mohanty (p.ws. 4 and 5 respectively), and u/s 326, Indian Penal. Code for causing grievous hurt with a dangerous weapon to p.ws. 4 and 5, and sentenced to undergo R.I. for one year, three years and ten years respectively under Sections 323, 324 and 326, Indian Penal Code. All these sentences are to run concurrently. 2. Prosecution case may be stated in brief. The accused is the own paternal uncle of the deceased. The father of the deceased died when he was about three years old. The accused brought him up. They were living in joint family. The deceased was working as a Gramasevak in Kendrapara Block. Their village is situated in the district of Balasore within the jurisdiction of Similia Police station. The occurrence took place on 25.10.1970 at 8-30 P.M. In the proceeding Asadha there was severance of joint status and the accused remained in a separate house within the same Khanja. There was, however, no partition of the joint family properties by metes and bounds. The accused was working as a teacher in a school at a distance of about one mile from the village. The accused appears to have put in some resistance in Dot smoothly effecting partition by metes and bounds. The deceased approached the YUBAK SANGHA (Youth Committee) of the village to effect an amicable settlement. Sometimes earlier with the assistance of the youth committee the deceased laid a foundation of a new house adjacent to the ancestral house in which he was residing after severance of joint status. During Durga Puja holidays the deceased had come home. On the date of occurrence his wife (p.w.4) was feeling somewhat uneasy. His mother (p.w. 5) had taken charge of his daughter about 2? years old and was looking after p.w. 4. The deceased came home at about 8-30 and was enquiring about the health of his wife inside his house. During Durga Puja holidays the deceased had come home. On the date of occurrence his wife (p.w.4) was feeling somewhat uneasy. His mother (p.w. 5) had taken charge of his daughter about 2? years old and was looking after p.w. 4. The deceased came home at about 8-30 and was enquiring about the health of his wife inside his house. At this point of time, the accused came to the house of the deceased and asked him to see the Khatian of the lands saying that though the Lands had been grabbed by the agnates, he (the deceased) was unnecessarily giving out to the villagers that he (the accused) was unwilling to effect an amicable partition by metes and bounds. The deceased 080 me to his own verandah and read the Khatian supplied by the accused with his own lantern which was burning dimly. The accused brought out his own lantern which was brighter. The deceased while reading the Khatian did not find anything going against his own view that the partition was not being amicably effected. Then the accused read the Khatian in a different manner, but on verification the deceased did not find the accused?s statement as correct. The accused then said that he would go inside his own house and bring another Khatian which would give the correct state of affairs. The accused came back with a Katari (M.O. XIII) Bond while the deceased was unguarded gave a stroke on his head. The deceased fell down in the courtyard. As this caused some unusual sound, both p.w. 4 and p.w. 5 rushed out of their room. They noticed the ghastly scene that the accused was attempting to out both the arms of the deceased. They resisted. On their resistance the attention of the accused was diverted towards them. Both p.ws. 4 and 5 were Successively attacked and severe injuries were caused to them with the very KATARI. In the meantime the deceased fled away to the village PATHAGARH (Library) where p.w. 1, p.w. 3 (Bhaskar Jena), p.w. 7 (Bhaskar Jena) p.w. 13 (Gayadhar Sial) and p.w. 16 (Chintamani Sial) were playing cards. The deceased was wholly naked and profusely bleeding. He narrated to them as to how he was attacked by the accused and - that they should immediately run to his houses to protect p.ws. 4 and 5 who were being assaulted by the accused. The deceased was wholly naked and profusely bleeding. He narrated to them as to how he was attacked by the accused and - that they should immediately run to his houses to protect p.ws. 4 and 5 who were being assaulted by the accused. Immediately p.ws. 1, 3, 7, and 16 went towards the house of the deceased. On the way a non got into the foot of p.w. 1. So he fell behind. P.ws. 3. 7 and 16 went ahead with a lantern. By this time the accused was coming on a cycle that way. On being questioned by them the accused did not give any rep. As they were not in a position to identify the cyclist due to darkness, they allowed him to pass by. A little distance after the accused struck against p.w. 1 who was coming in darkness. Both accused and p.w. 1 fen down. As a result of this clash both p.w. 1 and the accused bad injuries to him. P.w. 1 took the accused with the cycle to the Pathagar where p.w. 13 was waiting. P.ws. 3, 7 and 16 went into the house of the deceased and found p.ws. 4 and 5 severely injured and came back to the pathagar. Soon after the assault made by the accused, the hulla (cry) of p.ws. 4 and 5 attracted many parsons. P.w. 2 (Umakanta Mohanty), p.w. 6 (Raghunath Mohanty) p.w. 8 (Surendra Barik), p.w. 9 (Raghunath Mohanty), p.w. 10 Ram Chandra Mohanty), p.w. 11 (Bhaskar Sial), p.w. 12 (Narayan Barik), p.w. 13, p.w. 14 (Shyamsundar Barik) p.w. 15 (Baikunthanath Mohanty) and p.w. 17 (Kapila Barik) came to the spot. There they noticed that p.ws. 4 and 5 had been seriously injured. P.w. 18 (Udayanath Mohanty) also came immediately after the hulla and noticed the injuries. The Sarpanch (p.w. 13) made arrangements for removing the deceased and p.ws. 4 and 5 to hospital. On the way they passed the Primary Health Centre where the compounder was not prepared to take the responsibility in dealing with these serious cases. Ultimately all the three were taken to Bhadrak. The deceased died on the way. P.ws. 4 and 5 remained in the hospital for about 22 days. In that very night F.I.R. (Ext. 20) was lodged at about 10?Clock by p.w. 1. Ultimately all the three were taken to Bhadrak. The deceased died on the way. P.ws. 4 and 5 remained in the hospital for about 22 days. In that very night F.I.R. (Ext. 20) was lodged at about 10?Clock by p.w. 1. The Investigating officer (p.w. 25) took up investigation next days in the village Path agar the banion (M.O. VI) of the accused was seized at about 12 noon on 26-10.1970. It was drenched with blood and on serological test it was found to contain human blood. On 26-10-1970 at about 1.30 P.M. the accused is said to have given discovery of the Katari (M.O. XIII). On serological test it was found to have contained human blood. The defence of the accused was that he returned to his house at about 8.30 P. M. on 25-10-1970. He noticed the door of his bed room slightly open and inside the deceased was sleeping by the side of his wife (who was not examined). On being enraged he threw the KATARI (M.O. XIII) towards the deceased which struck him on his head. The head of the deceased also struck against the door of the house while he tried to run away. P.ws. 4 and 5 abused the deceased for his having illicit connexion with the wife of the accused and in anger the deceased gave one stroke to each of p.ws. 4 and 5, and ran away. 3. The learned Sessions Judge on an examination of various pieces of evidence on record came to the conclusion that the defence version was untrue and that the prosecution had established its case beyond reasonable doubt that the accused killed the deceased. Accordingly he Inflicted the sentence of death. 4. The prosecution has relied upon the following pieces of evidence: (i) The testimony of the eye-witnesses p.ws. 4 and 5. (ii) The extra-judicial confession made by the accused before p.ws. 1, 3, 13 and 16. (iii) The statement of the deceased made to the aforesaid five witnesses at the village Pathagarh relating to the cause and circumstances of his death. (iv) The discovery given by the accused of the KATARI (M.O. XIII). (v) The recovery of the banion (M.O. VI), and (vi) The evidence of p.ws. 2, 3, 6, 7, 8, 9. 10. (iii) The statement of the deceased made to the aforesaid five witnesses at the village Pathagarh relating to the cause and circumstances of his death. (iv) The discovery given by the accused of the KATARI (M.O. XIII). (v) The recovery of the banion (M.O. VI), and (vi) The evidence of p.ws. 2, 3, 6, 7, 8, 9. 10. 11, 12, 13, 14, 17 and 18 soon after the occurrence that after hearing the hulla from p.w. 4 and 5 they came to the house of the deceased and found p.ws. 4 and 5 severely injured. 5. That the deceased had a homicidal death is not disputed before us. There were multiple Injuries on his body as would be found from the post mortem report (Ex. 25) dated 26-10-1970 and the evidence of the doctor p.w. 26. The doctor opined that death was as a result of shook and haemorrhage caused by all the Injuries. Mr. Mohanty does not dispute that the deceased had a homicidal death. 6. We propose now to critically examine some pieces of evidence on which the learned Sessions Judge did not take a correct view. He has come to the conclusion that the accused made extra-judicial confession before p.ws. 3, 7, 13 and 16. On a careful scrutiny of their evidence we notice that before them the only statement made by the accused was to the effect BINASHA KALE BIPARITA BUD HI, which means ?when adversity comes, one loses his senses?. Law is well settled that a confession must be unequivocal, and must admit the offence in terms or various facts constituting the offence. The aforesaid statement does not lead to any confession of the commission of the offence. We are unable to appreciate how the learned Sessions Judge could consider the aforesaid statement as amounting to admission of guilt. The only other evidence is that on the way when the accused dashed his cycle against p.w. 1 he admitted before p.w. 1 that he had assaulted the deceased. The statement of p.w. 1 is uncorroborated and moreover no such question was put to the accused in his examination u/s 342, Code of Criminal Procedure. We, therefore, place no reliance on this part of the evidence of p.w. 1. Disagreeing with the learned Sessions Judge we hold that there was no extract judicial confession. 7. The statement of p.w. 1 is uncorroborated and moreover no such question was put to the accused in his examination u/s 342, Code of Criminal Procedure. We, therefore, place no reliance on this part of the evidence of p.w. 1. Disagreeing with the learned Sessions Judge we hold that there was no extract judicial confession. 7. The learned Sessions Judge has held that the production of M.O. XIII was in accordance with the provisions of Section 27 of the Indian Evidence Act, and, as such, the statement leading to the discovery was admissible in evidence. Ext. 6 dated 26-10-1970 is the seizure list for M.O. XIII. P.ws. 14 and 15 are the attesting seizure witnesses. In column relating to circumstances of seizure, it is mentioned that while the accused was in the custody of the police, he made a statement that he had kept the article inside his house and that he would give production of the same in the presence of witnesses. On a reference to the evidence of p.ws. 14 and 15, it is clear that the accused did not make any statement prior to giving production. Section 27 of the Indian Evidence Act lays down that when any fact is deposed to as discovered in of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The section basically assumes that the information must have been first given and on the basis of the information given by the accused the recovery would have been made. The evidence of p.ws. 14 and 15 clearly shows that prior to the article being found out, no prior statement was given by the accused. Consequently the recovery of M.O. XIII will be inadmissible in evidence u/s 27, Evidence Act. It is, however, admissible as indicating the fact that the accused gave production of the incriminating article. It is to be noted that M.O. XIII which was sent for serological test was found to have contained human blood. 8. The main witnesses in this case are p.ws. 4 and 5 who were eye witnesses. It is, however, admissible as indicating the fact that the accused gave production of the incriminating article. It is to be noted that M.O. XIII which was sent for serological test was found to have contained human blood. 8. The main witnesses in this case are p.ws. 4 and 5 who were eye witnesses. In the narration of facts, we have clearly stated as to how their attention was drawn when a sound was caused by the accused while giving a stroke with M.O. XIII on the head of the deceased who fen from the verandah into the courtyard. They also vividly described as to how the Moused was trying to out both the arms of the deceased. P.ws. 4 and 5 are relied to the deceased as wife and mother respectively and they are least expected to implicate the accused in such a gruesome murder if somebody else was the murderer. The murder took place very early in the evening. Naturally people were expected to remain awake at that point of time. The injuries on p.ws. 4 and 5 corroborate their testimony. Very serious injuries were inflicted on each of them. They were indiscriminately pursued. Their evidence was very critically placed before us by Mr. Mohanty. After giving our anxious consideration, we are satisfied that they were speaking the truth. It is to be noticed that the accused admits his presence at that point of time. The body of the accused was drenched with blood after having committed murder of the deceased and severe injuries on p.ws. 4 and 5. The accused was on the way soon after the, murder, and from his body was recovered the banion (M.O. IV) which was drenched with blood and on serological test it was found to have contained human blood. 9. The statement of the deceased to p.ws. 1, 3, 7, 13 & 16 at the village library is a Dying Declaration of the deceased. Law is now when settled that a conviction can be based merely on the basis of Dying Declaration provided it is found to be true. We have carefully gone through the evidence of those witnesses. So far as this part of the case is concerned, there is absolutely no discrepancy. Mr. Mohanty wanted to attack the Dying Declaration on two-grounds. Law is now when settled that a conviction can be based merely on the basis of Dying Declaration provided it is found to be true. We have carefully gone through the evidence of those witnesses. So far as this part of the case is concerned, there is absolutely no discrepancy. Mr. Mohanty wanted to attack the Dying Declaration on two-grounds. Firstly, he contended that the nature of the injuries on the deceased was such that he could not have gone a distance of about one mile from his house to the village library. A question on this point was put to the doctor p.w. 26 who replied that even with such Injuries one might cover such a distance. Secondly, Mr. Mohanty contended that this group of witnesses were members of the youth committee who used to give moral support and assistance to the deceased in the settlement of dispute between the accused and the deceased and, as such, no reliance can be placed on their evidence. We are least impressed by such argument. Merely because some members of the Youth Committee wanted to effect amicable settlement, no adverse inference can be drawn & against them. Their approach was laudable. The accused wanted to grab on their property to himself. We find no materials on record to draw an inference that the members of the Youth Committee were in any Way adversely disposed of towards the accused. At any rate, they are not expected to falsely pledge their testimony in such gruesome murder merely because they intervened for settlement of dispute. We accept the Dying Declaration made by the deceased as true as It does not suffer from any infirmity. 10. That next piece of evidence is the statement made by a number of witnesses, such as p.ws. 2, 3, 6 to 10, 17 and 18. All these witnesses say that soon after the occurrence when they heard the hulla, they came to the spot and founds p.ws. 4 and 5 severely injured. P.ws. 6 and 17 were declared hostile. We were led into their evidence. In their examination-in-chief they supports prosecution story. P.w. 6 went to the length of saying that p.ws. 4 and 5 told there that the accused caused injuries to the deceased. P.ws. 6 and 7 had not been relied upon by the learned Sessions Judge. We do not attach much importance to their statements. We were led into their evidence. In their examination-in-chief they supports prosecution story. P.w. 6 went to the length of saying that p.ws. 4 and 5 told there that the accused caused injuries to the deceased. P.ws. 6 and 7 had not been relied upon by the learned Sessions Judge. We do not attach much importance to their statements. Nothing substantial was urged against the evidence of the witnesses that they noticed Injuries on p.ws. 4 and 5 soon after the occurrence. 11. To sum up the prosecution case, It is established beyond reasonable doubt by the evidence of the eye-witnesses p.ws. 4 and 5 that the accused inflicted injuries on the deceased which ultimately resulted in his death. It was he who also caused injuries on p.ws. 4 and 5. Their evidence is fully corroborated by the production of Katari (M.O. XIII) and the banion (M.O. VI) which were stained with human blood. The Dying Declaration of the deceased not only corroborates the evidence of p.ws. 4 and 5, but by itself is enough to constitute the basis of the conviction. This piece of evidence leads to the irresistible conclusion that the accused caused the murder Be well as the injuries to p.ws. 4 and 5. 12. We now proceed to examine the defence version. The case of the accused was that on finding the deceased sleeping with his wife in his bed-room, lost his control and throw M.O. XIII towards the deceased which struck him on the head. This version is wholly falsified by the injuries on the deceased. The following injuries were found on the body of the deceased: External: 1. An incised injury 2" x 1" x ?" spirdlo shaped margin clean out over the right arm 2" above the wrist. 2. Incised Injury 3" x 0.2" spindle shaped clean out mark over the right arm 2" above the elbow. . 3. Incised injury 2" x ?? x 0.2" spindle shaped clean out over right cubital. 4. 3 incised injuries of size 1" x 0.2" over the left forearm 2" above the wrist being 1" apart from each other. 5. Incised injuries 2.5" x 0.5" scalp deep over the left frontal scalp placed obliquely 5'? behind and left to the root of the nose Margine clear out spindle shaped. 6. 4. 3 incised injuries of size 1" x 0.2" over the left forearm 2" above the wrist being 1" apart from each other. 5. Incised injuries 2.5" x 0.5" scalp deep over the left frontal scalp placed obliquely 5'? behind and left to the root of the nose Margine clear out spindle shaped. 6. Incised injury of size 2" x ?" x scalp deep over the occipital scalp 3" above and left to the occipital protuberance. Margin clean an spindle shaped. Internal: 7. The occipital bone underneath the injury No. 6 has got a linear fracture of size 2" x 0" x bone deep. Membrance underneath the fracture (injury No. 7) has (torn) of size 1? x 0.2" and there are antemortem blood clots two ounces over the occipital portion of the brain. All the above injuries are ante mortem in nature. The external injuries were six in Dumber and of serious character and on different parts of the body and cannot be caused by throwing M.O. XIII once, The accused could have examined his wife and son in support of his version. The defence story is falsified by the prosecution evidence. 13. On the aforesaid analysis we are satisfied that the prosecution has established its case beyond reasonable doubt and the conviction was rightly made. The only other question for consideration is as to what would be the appropriate sentence. Having given our anxious consideration we are satisfied that death is the proper sentence on the facts and circumstances of the case. The deceased was wholly defence less. He never suspected that the accused would come with a sharp cutting weapon to kill him. The accused beguiled the deceased into the reading of khatian having hatched a plan to kill him in an unguarded moment. The murder is diabolical and gruesome. The Appellant deserves extreme penalty. 14. It is unnecessary to discuss the conviction and sentence regarding the other sections. There can be no question that the conviction and sentences passed under Sections 324, Indian Penal Code must stand. The conviction of the Appellant would be set aside u/s 323, Indian Penal Code as he intentionally caused no hurt to p.w. 1 against whom he dashed his cycle in that darkness. 15. We accordingly dismiss the criminal appeal and confirm the sentence of death. The reference is accepted. K.B. Panda, J. 16. I agree.