Judgment 1. The sole appellant Ramji Singh has been convicted under the charge under S.302 of the I.P.C. for committing the murder of his own uncle Ramdeo Singh. He has been sentenced to suffer imprisonment for life. 2. He was put on trial with his father Kapildeo Singh and his mother Hirjharia alias Phulmati and three other agnetic relations. The other remaining accused were charged under S.302/149 and also under Ss. 148 and 147 of the Code. But all of them have been acquitted accused Ramji Singh, besides the charge under S.302 of the Code was further charged under S.148 and also under S.324 for causing voluntary hurt to P. W. 6 Radhika Devi wife of deceased Ramdeo Singh, but he has been acquitted of that charge. 3. The occurrence took place on the 29th Sept., 1980 in the morning at about 7 a.m. at village Chhotki Kothia about 12 k.m. away from police station Buxar in the district of Bhojpur. 4. The deceased Ramdeo Singh was the full brother of accused Kapildeo Singh. According to the prosecution version, there was already partition in the family and the deceased. was living separately. There is a lane in between the houses of the deceased Ramdeo Singh and accused Ramji Singh. The house of the appellant is in the north of the lane and that of deceased Ramdeo in the south, almost facing each other. The lane is between the two houses and it appears from the evidence that in the west of the house of the deceased there is an open space close by belonging to him. The lane goes up to that land. There was already a partition of the ancestral properties, but still there was dispute lingering on with respect to the said land close to the house of the deceased. 5. The case of the prosecution is that Ramdeo Singh, the deceased was making some fuel-cakes out of the cow-dung in that portion of the land. This was objected to by the father and mother of the appellant, but Ramdeo Singh did not budge and made a claim over the land. This led to an altercation and some of the accused persons (acquitted of the charges and one of them namely Kishore Singh, who died before he was put on trial) called out Ramji Singh and asked him to kill Ramdeo. This led to an altercation and some of the accused persons (acquitted of the charges and one of them namely Kishore Singh, who died before he was put on trial) called out Ramji Singh and asked him to kill Ramdeo. It is said that accused appellant Ramji Singh was carrying a bhala. He struck with it twice hitting in the abdomen of Ramdeo. On hearing Hulla Ramdeos wife P.W. 6 Radhika came out of her house. The allegation is that she too was assaulted by Ramji Singh and other accused had also joined and threw brick-bats and stone-chips and other were hurling lathies. Ramdeo Singh fell down getting the blow. But he was soon removed to Buxar State Dispensary. Some medical aid was given to him and the doctor attending on him sent O.D. slip to the officer in charge, police station Buxar intimating that a victim with penetrating abdominal injury was admitted and asked the police to arrange for recording his dying declaration. This O.D. slip has been put in evidence marked as Ext. 4. It may be stated here that the said doctor has not been examined by the prosecution. 6. On getting information, the A.S.I. of police station Buxar arrived and he took down the fardbeyan of Ramdeo Singh. This statement has been marked as Ext. 5. On the basis of it a formal F.I.R. marked Ext. 6 was drawn up. Arrangement for recording the dying-declaration of Ramdeo Singh was also done. The Magistrate P.W. 13 Ramnarain Pd. was requisitioned. He recorded the statement of Ramdeo Singh and this statement described as dying-declaration, has been admitted in evidence marked Ext. 9. Ramdeo Singh was soon removed to the Patna Medical College Hospital for better treatment. But the abdominal injury proved fatal and he died at the P.M.C.H. The police had already taken up investigation. Autopsy was done over the dead-body of Ramdeo Singh by P.W. 11 R.P. Srivastava. The post-mortem report is Ext. 3 on the record. The police after investigation finally submitted charge-sheet, thus putting this appellant along with others on trial, and finally by the Additional Sessions Judge by judgment dt. 19-4-1983 held appellant alone guilty of the charge, as discussed above, against which this appeal arises. 7. The accused in his defence has pleaded innocence and a simple denial of the entire incident. The police after investigation finally submitted charge-sheet, thus putting this appellant along with others on trial, and finally by the Additional Sessions Judge by judgment dt. 19-4-1983 held appellant alone guilty of the charge, as discussed above, against which this appeal arises. 7. The accused in his defence has pleaded innocence and a simple denial of the entire incident. There has been no specific defence taken in the Court below beyond the plea of innocence. The prosecution examined 13 witnesses in all to substantiate the charge, out of whom, P. Ws. 4, 6 7 and 9 are said to be the eye-witnesses. But the learned Addl. Sessions Judge did not accept the testimony of P. Ws. 7 and 9. Reliance has been placed by the Court below on the statement of P. W. 6 Radhika Devi, wife of deceased Ramdeo Singh. P. Ws. 2, 3 and 5 have been tendered by the prosecution and P. W. 8 is the witness to the seizure regarding some blood stained clothes. As noted above, P.W. 11 is the doctor namely, R. P. Srivastava, who conducted postmortem examination over the dead-body. P. W. 12 is Sub-Inspector of Police, who was then Officer-in-charge at Police Station Buxar. It is he, who investigated the ease and submitted charge-sheet. P. W. 13 is Ram Narain Pd., Magistrate, who recorded the dying-declaration of Ramdeo Singh at Buxar hospital and beyond this the fardbeyan (Ext. 5) recorded by the A. S. I. at Buxar State Dispensary has also been considered as dying-declaration admissible under S.32 of the Evidence Act and the trial Court relying on the two successive statements made by the deceased Ramdeo Singh and also of the statement made by his wife P. W. 6 Radhika Devi held the appellant guilty of the charge. 8. The learned Advocate for the appellant, in fact, did not challenge the admissibility of the two documents, i.e. the fardbeyan (Ext.5) and the subsequent statement of the deceased (Ext. 9) recorded by the Magistrate, but in course of his argument he has made a pungent criticism that the dying-declaration (Ext. 9) is not worth acceptable. The learned Advocate has catelogued some of the infirmities in the said document, as noticed by him and has argued that in that view, the dying-declaration is fit to be rejected outright on the following reasons : (i) The out-door slip (Ext. 9) is not worth acceptable. The learned Advocate has catelogued some of the infirmities in the said document, as noticed by him and has argued that in that view, the dying-declaration is fit to be rejected outright on the following reasons : (i) The out-door slip (Ext. 4) would show that the condition of the patient, that is of Ramdeo Singh was getting low and in absence of any certificate by a doctor that he was able to give statement, it would be difficult to admit that Ext. 9 was the statement of Ramdeo Singh. (ii) There is no certificate appended to the document (Ext. 9) to indicate that the injured was conscious and that the injury was not such that he could not have made his statement. (iii) The Magistrate did not record the time of taking down the statement. (iv) In Ext. 9 the deponent has named accused Ramji the appellant as son of Kedar Singh and this would show that his memory was failing and no reliance should be placed on such incoherent statement. (v) It has not been recorded in the form of question and answer. 9. We have given full consideration to the points raised before us. We get from the trial Court judgment that the doctor, who wrote the O.D. slip has gone out of the country and was not available and the O.D. Slip, as pointed out above, has been admitted in evidence as Ext. 5. The slip was issued at about 11.40 a.m. and soon after the police arrived and recorded the fardbeyan (Ext. 5). The doctor has further opined, as noted in the slip that the patient was to be removed to the Patna Medical College Hospital the same day. It appears that the subsequent statement that his dying-declaration (Ext.9) was recorded sometime in the afternoon and to our mind, non-mentioning of the time in the dying-declaration does not invalidate the document. It may be noted here that the admissibility of Ext. 4 i.e. the O.D. slip has not been disputed by the appellants Counsel. Rather the learned counsel for the appellant referred to this document to show that the condition of the patient was low. It may be noted here that the admissibility of Ext. 4 i.e. the O.D. slip has not been disputed by the appellants Counsel. Rather the learned counsel for the appellant referred to this document to show that the condition of the patient was low. We could not get from the record any evidence leading to the fact regarding non-availability of the doctor, who wrote the out-door slip, but since the admissibility is not in dispute, we do not propose to discuss it at greater length, but even assuming that if this document is kept out of consideration, we are to see the very attending circumstances and other evidence available on the record to find out if Ramdeo Singh was in a fit state of mind to make the statement which he gave to the Magistrate. The very fact that the doctor gave advice for recording the dying-declaration, for all purposes would mean and we take it that the patient was in full sense and able to talk, in other words, we can say that the O. D. slip (Ext. 4) which has been referred to by the learned Advocate is itself a certificate of the fact that the patient was in full sense and quite alert in mind. To be more clear, we may add here that P. W. 13 the Magistrate has said in his statement in Court that Ramdeo Singh was talking quite alright. So, it cannot be argued now to say that Ramdeo Singh was unconscious because of his low condition and that the Dying-Declaration was not the statement of Ramdeo Singh. 10. There is of course, some inaccuracy with regard to fathers name of accused appellant Ramji Singh. In Ext. 9 he has been shown to be the son of Kedar Singh, whereas he is son of the accused Kapildeo, who has been acquitted in this case. We would be repeating that the deceased Ramdeo and Kapildeo are full brothers, both are sons of Kedar Singh. We like to make it clear that at any stage, the learned Advocate keeping in view the relationship between the parties, did not attack the question of identity of the appellant. It is not in dispute, nor it can be. The deceased Ramdeo is admittedly his own uncle. We like to make it clear that at any stage, the learned Advocate keeping in view the relationship between the parties, did not attack the question of identity of the appellant. It is not in dispute, nor it can be. The deceased Ramdeo is admittedly his own uncle. It appears to us that no sooner Ramdeo Singh gave out the names of his assailant, the Magistrate might have asked the name of his father and in all confusion Ramdeo gave out the name of his own father Kedar Singh and it was recorded by the Magistrate as Ramji Singh son of Kedar Singh, confusing it to be the name of the accuseds father. At any rate, this sort of confusion which has been argued in term of being contradictory statement, does not appear to be a discrepancy to falsify the document. Ext. 5 which has also been admitted as dying declaration under S.32 of the Evidence Act and the parentage has been correctly stated in the said document. 11. Lastly, coming to the question raised at the bar that the statement should have been recorded in the form of question and answer, we may only say that no law can be laid down in strict sense of the term to record dying declaration in form of question and answer. In the instant case, we find, as stated by the Magistrate that he recorded the same in the dialect spoken by the deponent Ramdeo Singh. Thus, we do not find any infirmity therein and we find that these two statements are good pieces of evidence, sufficient enough to prove the guilt against the appellant. 12. It is true that no certificate has been appended at the foot of the note of Ext. 9. We have discussed this question in the foregoing paras. The submission of the learned Advocate is that the Magistrate should have given a certificate or should have obtained it from some doctor available that the deponent was in a fit state of mind to make statement. We can understand that we may look far such sort of certificate if some doubt creeps into the mind of the Court whether the deponent was mentally alert to make statement and not in every case. We can understand that we may look far such sort of certificate if some doubt creeps into the mind of the Court whether the deponent was mentally alert to make statement and not in every case. The dying man may, at times, in a conscious moment, make some statement to persons present around him which may or even may not be recorded by any individual and quite likely may die soon thereafter giving no chance to doctor to attend on him. It cannot be said in absence of the certificate that the whole statement should be rejected for want of it, even if otherwise found to be an honest statement. So, in judging the same the totality of the entire circumstance should be looked into and it is just as a rule of caution only to find out that if the deponent was mentally alert and in fit state of mind to make statement. There is no prescribed form to record a dying-declaration and no rigid rule can be for the same. It can only be said that the man who records the dying declaration must satisfy himself that the deponent in a fit state of mind and quite alert in making statement relating to the injuries sustained by him. A few omissions in the statement here and there, if the statement is otherwise found to be honest and acceptable, cannot be said to be a reasonable cause to reject it, and more so, if other facts reflect the same to be as a correct statement. 13. The learned Advocate has repeatedly submitted and even in his last phase of the argument in attacking the genuineness of Ext. 9 that there is factual contradiction in it, compared with the statement of his wife P. W. 6 Radhika Devi. Here it has been argued that from the dying declaration we get that it was Ramji, the appellant, who assaulted Radhika. But she herself said in Court that she was assaulted by another accused named Kishore Singh (since died and could not be put on trial). It was of course, on this account that accused Ramji Singh the appellant has been acquitted of the charge under S.324 of the Code. But she herself said in Court that she was assaulted by another accused named Kishore Singh (since died and could not be put on trial). It was of course, on this account that accused Ramji Singh the appellant has been acquitted of the charge under S.324 of the Code. While examining this aspect of the case, we need not emphasise again that the dying-declaration, if acceptable provides a safe ground for conviction of the accused and a Court need not look for any corroboration thereof. In the dying declaration, as pointed out above, declarations are at two stages; and as we get on perusal of the entire evidence both the statements are free from any tutoring or even whispering from any quarter or by any one inimical to the accused. The deponent gave the statement while he was in the apprehension of death. Therefore, some faultering statement made by P. W. 6 as to who was her assailant, will not take away the evidentiary value of the aforesaid two statements, who has specifically named this appellant as his assailant. His statement is that while he was preparing cakes of cowdung the accused persons objected to it laying claim over the lane which led to some dispute. Some of the accused commanded Ramji Singh to kill him and Ramdeo Singh has said in his dying declaration that Ramji Singh, the appellant inflicted two fatal blows in his stomach. The doctor P. W. 11, who held postmortem over the dead body has noticed the following ante mortem injuries on his body : 1. Surgically stitched wound 8" x 1/2" abdomen cavity deep - longitudely right of mid-line above umblicus. 2.Surgically stitched wound 1" x 1/2" x muscle deep on left upper part of abdomen. 3.Surgically incised wounds on both flanks of abdomen for drainage tube. The doctor has opined that the cause of death of the victim Ramdeo Singh was because of the bleeding and shock caused by the injuries mentioned above and we find that these injuries were sufficient in the ordinary course of nature to cause death, although this fact has not been specifically asked by the doctor P. W, 11 in Court. 14. Lastly, we may state that in the present case P. W. 9 has in fact corroborated the dying declaration made by her husband. She herself got injury in the incident. 14. Lastly, we may state that in the present case P. W. 9 has in fact corroborated the dying declaration made by her husband. She herself got injury in the incident. Although the injury report has not been proved, but fact remains that she was there in the house. Her evidence is that she came out hearing the cry. Her son P. W. 4 was then -suffering from measles and no sooner she came out, she saw the assault made on her husband by Ramji and on her intervention she too was assaulted. Thus, we get that she has amply corroborated her husband on material particulars, particularly with regard to the appellant inflicting two bhala blows in the abdomen of deceased Ramdeo, which proved fatal and resulted in his death. We therefore, do not see any merit in the appeal and it is fit to be dismissed. But before we part with the judgment, we may further state here that the Counsel for the respondent took us through the statements of P. Ws. 4, 7 and 9. The evidence of these witnesses has not been relied by the Court below, nor the same has been referred to by the learned Advocate for the appellant, except a feable attempt to show the statement of P. W. 4 that he came out with his mother and when he himself did not see the incident, the statement of his mother P. W. 6 should have also been rejected. We would like to say that although we are not reverting back for reappraisal of evidence of these witnesses, but findings of the learned Additional Sessions Judge do not appear to be correct and he has made a very sketchy appraisal in the judgment impugned, which we do not appreciate. 15. As discussed above, we have said that P. W. 6 has fully corroborated the two dying declarations made by her husband Ramdeo, i.e. Exts. 5 and 9 which get further support from the post-mortem report, which shows that the doctor too found two penetrating injuries in the abdomen. 16. Lastly, the learned Advocate has also made an attack that the prosecution failed to prove the place of occurrence and therefore, the case must be rejected as a whole. We do not find any force in the submission. 16. Lastly, the learned Advocate has also made an attack that the prosecution failed to prove the place of occurrence and therefore, the case must be rejected as a whole. We do not find any force in the submission. While discussing this part of the argument, we may like to state that the Investigating Officer does not appear to be honest when he has made his statement in Court that he did not examine some of the witnesses regarding which he was asked. Although we do not like to refer to the police diary, but we are constrained to observe that in order to satisfy our conscience, we have been taken through some portion of the same and we find that the statement of those witnesses are very much there. The land where the deceased was preparing fuel cake out of cowdung and close to his house. P. W. 6 has said in her evidence that it takes about hardly a few minutes to go to that open space from her house. We may imagine that when the dispute arises over preparation of cowdung-cake at the spot and there was a cry calling out Ramji Singh to kill Ramdeo Singh, he would not have remained static and moved on. The lane is in between his house and the house of the accused. The evidence is that other accused had also joined and some of them had thrown brick-bats and stone-chips. the Investigating Officer, in fact, found sign of stone-chips at the Darwaza of the deceased. It may also be noted that he found some water in the field, i.e. the disputed land. Presumably this was an attempt to remove and deface the valuable evidence in question. P. W. 12 has said that the disputed land is just on the back side of the house of the deceased. He of course, did not point out the place but on inspection he did not find any blood stain and he found that water had been thrown, which obviously suggests that attempts were made to deface or remove the evidence available on the spot and therefore, it cannot be argued that the prosecution has failed to prove the place of occurrence. 17. In the result, the appeal fails and is dismissed.