P.N.SHINGHAL, J. (1) THIS appeal of Banka Nayako. Radhakrishna Choudhury and Dandapani Choudhury, by special leave, is directed against the appellate judgment of the orissa High court dated 10/02/1971, upholding their conviction for an offence under S. 302/34 1. P. C. and sentence of rigorous imprisonment for life. (2) IT is not in dispute, and is in fact admitted, that there was a longstanding dispute between Ramchandra Choudhury (Public Witness 1) on the one side, and appellants Radhakrishna Choudhury and Dandapani Choudhury on the other. Appellant Banka Nayako is the servant of Radhakrishna Choudhury. The dispute related to partition of joint family properties, and gave rise to several civil and criminal cases. saita naik was the servant of Ramchandra Choudhury (Public Witness 1) and was his- Supporter in the litigation. He had also started some criminal cases against the appellants and was a witness for Ramchandra Choudbury (Public Witness 1) in some cases against the accused. He was involved in some cases started by appellant Dandapani Choudhury. A dacoity case started by Ramchandra Choudhury (Public Witness 1) was pending against the accused on the date of the incident. It is alleged that Ramchandra Choudhury (PW 1) started from his village Punando on 5/03/1969, at about 4 p.m., along with Saita Naik and reached Hinjilikatu at about 6 p.m. He then left for Aska by bus. Saita Naik, Nabadwipa Padhi (Public Witness 2) and Bishnu Gouda (Public Witness 5) left for Punando. While they were passing through the dry bed of Ghodahada river, it is alleged that Saita Naik stayed back to answer the call of nature, while his two companions proceeded towards the northern bank of the river. When they reached the northern bank, it is alleged that Nabadwipa Padhi and Bishnu Gouda found that all the fourteen accused who were challaned in this case were present near a ditch armed with khanatis, lathis and katis. They began to attack Nabadwipa Padhi (Public Witness 2) and Bishnu Gouda (Public Witness 5) but they ran away. It is alleged that the accused then attacked Saita Naik. Appellants Dandapani Choudhury and Radhakrishna Choudhury are said to have pierced him with khanatis, and Banka Nayako hit him with a kati on the head. Nabadwipa Padhi (Public Witness 2) went to Hinjilikatu and then to Aska, and narrated the incident to Ramachandra Choudhury (Public Witness 1). It is alleged that the accused then attacked Saita Naik. Appellants Dandapani Choudhury and Radhakrishna Choudhury are said to have pierced him with khanatis, and Banka Nayako hit him with a kati on the head. Nabadwipa Padhi (Public Witness 2) went to Hinjilikatu and then to Aska, and narrated the incident to Ramachandra Choudhury (Public Witness 1). Both of them went to Pattapur police station and lodged a report at 2 a. m. It is alleged that, in the meantime, Gola Nahaka (Public Witness 10), who was a nephew of Saita Naik, heard about the incident from Bishnu Gouda (Public Witness 5) at mauza Puddo, and went to Ghodahada river along with some villagers including Saita Naiks son Musa Nayak (Public Witness 3). They found that Saita Naik was lying unconscious in the bed of the river. Musa Nayak is said to have given him some water, and he regained consciousness. It is further alleged that, on inquiry, Saita Naik informed those present that Dandapani Choudhury and Radhakrishna Choudhury had pierced him with khanatis and Banka Nayako had struck him with a kati on his head and that he expressed a desire to be taken to Hinjilikatu where he said he would give further details of the incident. He was accordingly taken there, but he died by the time he reached Hinjilikatu. A report of the incident was lodged by Golla Nahaka (PW 10) at Hinjilikatu police station. A post mortem examination was performed on the body of Saita Naik by Dr. K. K. Misra (Public Witness 13). He found several injuries on his body, and his report is on the record as Ex. 5. All the injuries were found to be ante mortem and Saita Naiks death was found to be due to the combined effect of syncope and coma. Fourteen accused were challaned and the Sessions Judge of Ganjam-Boudh, Behrampur, convicted them all of the offence of rioting armed with deadly weapons under Section 148 and of murder under S. 302 read with S. 34 Indian penal code He sentenced them to undergo rigorous imprisonment for two years for the offence under S. 148, and to imprisonment for life for the offence under Section 302 read with S. 34 1. P. C. On appeal, the High court upheld the conviction and sentences of the present appellants, but acquitted the remaining eleven accused. P. C. On appeal, the High court upheld the conviction and sentences of the present appellants, but acquitted the remaining eleven accused. (3) THE prosecution examined Nabadwipa Padhi (Public Witness 2), Bishnu Gouda (PW 5), Ganapati Choudhury (Public Witness 4) and Khalli Padhi (Public Witness 8) as eyewitnesses of the incident. At the trial, Bishnu Gouda (Public Witness 5) did not support the case of the prosecution. Of the remaining three witnesses, Nabadwipa Padhi (PW 2) has been held by the High court to be an interested witness, and rightly so, for he has admitted that he looked after the cultivation of Ramachandra Choudhury (Public Witness 1) for a period of five years. It will be recalled that Ramachandra Choudbury (Public Witness 1) was the person who had employed Saita Naik and was involved in criminal and civil cases against the appellants. Nabadwipa Padhi (Public Witness 2) has also admitted that appellant Dandapani Choudhury had started two cases against him before the date of occurrence, and that he was a witness for Ramachandra Choudhury (Public Witness 1) in four cases against the accused. Moreover Nabadwipa Padhi did not state in his report to the police that the accused were armed with khanatis or katis, or that he had seen them surrounding Saita Naik. The High court has not, therefore, found it possible to convict the appellants on his testimony. (4) GANAPATI Choudhury (Public Witness 4) has admitted that he accompanied Ramachandra Choudhury (Public Witness 1) for canvassing for him in the election of sarpanch in 1967, and .that he had sworn two affidavits in his favour in two cases against Dandapani Choudhury under S. 145 Criminal procedure code He was also a witness in a criminal case started by Ramachandra Choudhury (Public Witness 1) against Dandapani Choudhury. The High court has therefore rightly taken the view that his evidence could not be accepted without sufficient corroboration. (5) KHALLI Padhi (Public Witness 8) has stated that when he was going from Hinjilikatu to the village he heard the shouts of Nabadwipa Padhi near the bank .of Ghodahada river and saw that the accused were armed with khanatis and katis and they were assaulting or shouting to assault Saita Naik. He has stated further that when he protested he was asked by the accused not to disclose the incident to anybody. He has stated further that when he protested he was asked by the accused not to disclose the incident to anybody. He went to his village, and talked about the incident to Dandapani Khandual (Public Witness 7), Murli Biswal (Public Witness 9) and Suma in the morning. The statement of this witness has, however, not been held to be reliable because of the fact that there was no satisfactory explanation why he was not examined for a period of 18 days, and the further fact that he was taken to the police station by no less a person than Ramachandra Choudhury (Public Witness 1). Moreover, Dandapani Khandual (Public Witness 7) and Murii Biswal (Public Witness 9) have not corroborated his statement. The High Court was therefore again right in .taking the view that his statement could not be accepted without further corroboration. (6) IT would thus appear that the High court has not found it possible to uphold the conviction of the appellants on the basis of the statements of Nabadwipa Padhi (Public Witness 2), Ganapati Choudhury (Public Witness 4), Bishnu Gouda (PW 5) and Khalli Padhi (Public Witness 8) without the aid of corroborative evidence. It was also not impressed by the statements of Dandapani Khandual (Public Witness 7) and Murii Biswal (Public Witness 9) that they had seen all the accused at the place of the occurrence. The High court has, however, taken the view that the evidence of those, who claimed to be eyewitnesses of the incident had been corroborated by the dying declaration of Saita Naik as stated by Musa Nayak (PW 3) and Golla Nahaka (Public Witness 10), and it is on account of that corroboration that it has upheld the conviction of the appellants. The question is whether the dying declaration could be said to have been proved by reliable evidence ? (7) MUSA Nayak (Public Witness 3) has stated that when he learnt about the incident, he went to the place of occurrence and found that his father was lying senseless in the bed of the river. He put some water in his mouth, and then he came to his senses. The witness has stated further that on inquiry Saita Naik told him that Dandapani Choudhury and Radhakrishna Choudhury pierced him with khanati and Banka Nayako assaulted him on his head with kati. He put some water in his mouth, and then he came to his senses. The witness has stated further that on inquiry Saita Naik told him that Dandapani Choudhury and Radhakrishna Choudhury pierced him with khanati and Banka Nayako assaulted him on his head with kati. He has stated further that his father told him that he should be taken to Hinjilikatu where he would "tell the rest of the occurrence", but he died on the way. Gola Nahaka (Public Witness 10) is the other witness who has deposed about the dying declaration. He has corroborated the statement of Musa Nayak (Public Witness 3). (8) AS has been pointed out, Musa Nayak (Public Witness 3) is the son of the deceased, while Golla Nahaka (Public Witness 10) is his nephew. Their statements are to the effect that the deceased told them that Dandapani Choudhury and Radhakrishna Choudhury pierced him while Banka Nayako assaulted on the head with a kati. We however find that Dr. K. K. Misra (Public Witness 13) has categorically stated that while there was one "incised looking" lacerated wound on the forehead and side of the scalp and one similar lacerated wound on the eyebrow and the left temple, they were lacerated wounds which could have been caused by a blunt weapon. There is nothing in the statement of the witness to show that he found any such injury as could corroborate the version that piercing injuries had been inflicted on the deceased. It appears that this important part of the statement of Dr. K. K. Misra (Public Witness 13) was not brought to the notice of the High court and it could not therefore take note of the fact that instead of corroborating the statements of Musa Nayak (Public Witness 3) and Golla Nahaka (Public Witness 10) regarding the alleged dying declaration, it went to discredit them altogether. It will be recalled that Musa Nayak (PW 3) and Golla Nahaka (Public Witness 10) had stated that they found Saita Naik living unconscious in the bed of the river and that the he came to his senses temporarily when some water was put into his mouth, but he became unconscious once again. Dr. It will be recalled that Musa Nayak (PW 3) and Golla Nahaka (Public Witness 10) had stated that they found Saita Naik living unconscious in the bed of the river and that the he came to his senses temporarily when some water was put into his mouth, but he became unconscious once again. Dr. K. K. Misra (Public Witness 13) has however stated that he found, on a post-mortem examination, that there was congestion of the brain of the deceased due to the head injuries and that having "lost consciousness the victim might not have regained consciousness". This part of the statement was also not noticed by the High court and was also not taken into consideration even though it had a great hearing on the question whether the deceased could regain consciousness and make a dying declaration. As it is, it cannot be said with any amount of certainty that the deceased made the Golla Nahaka (Public Witness 10) and it could not, therefore, be held that it could Golla the cements of those who had been examined as witnesses of corroborate the so statements of the eyewitnesses have, by themselves, been held by the High court to be inadequate proof of the commission of the offens by the appellants, they are entitled to benefit of the doubt. (9) THE appeal is allowed and appellants Banko Nayako, Radhakrishana Choudhary and Dandapani Choudhury are acquitted. They are in jail and shall be released forthwith. In view of this, there could be no question of their conviction for an offence under S. 148 Indian penal code and they are acquitted of that offence, also.