BEHERA, J. ( 1 ) THE two appellants along with the absconding accused Litia Rautia alias Lakhan Rautia, as alleged, killed Digu Mundarl (to be described hereinafter as Tthe deceasedt) on August 22, 1982 by means of an axe and knife inside the house of the appellant Diliga after tying his legs by means of a Saree. The two appellants stood charged under section 302 read with section 34 of the Indian Penal Code (for short, the Codet) for having committed the murder of the deceased in furtherance of their common intention, but have been convicted for commission of culpable homicide not amounting to murder under section 304 Part I read with section 34 of the Code and sentenced thereunder to undergo rigorous imprisonment for a period of seven years. ( 2 ) THE offence was alleged to have been committed after a sudden quarrel or the quarrel, there was no satisfactory evidence. It admits of no doubt that the death of the deceased was homicidal in nature. ( 3 ) THE order of conviction has been based mainly on the dying declaration said to have been made by the deceased before his brother (P. W. 1) and P. W, 3, the cousin of P. W. 1, besides the medical evidence and recoveries of some clothes from the two appellants suspected to have stains of blood which, on chemical and serological tests, were found to contain stains of human blood of AT group. ( 4 ) IT has been contended on behalf of the appellants that the evidence with regard to the oral dying declaration said to have been made by the deceased was wholly unreliable and unacceptable and should have been discarded by the trial court. It has been submitted on behalf of the appellants and fairly conceded by the learned Additional Government Advocate that if the evidence with regard to the oral dying declaration testified by P. Ws. 1 and 3 is not accepted, there is no other evidence to connect the appellants with the commission of the offence. ( 5 ) IT has been a settled principle of law that in the absence of other evidence pointing to the guilt of an accused mere recovery of some articles from him containing human blood would not, by itself, be sufficient to sustain a charge of this nature. ( 5 ) IT has been a settled principle of law that in the absence of other evidence pointing to the guilt of an accused mere recovery of some articles from him containing human blood would not, by itself, be sufficient to sustain a charge of this nature. In this connection, reference may be made to the principle laid down in Manju alias Mohan Das v. State1. ( 6 ) HERE is a case in which not a written dying declaration, but evidence with regard to a dying declaration has been relied on by the prosecution. In a case where a dying declaration is said to have been made, the prosecution should do well to seek a clarification from the medical officer as to whether with the injuries-the deceased had, he could be in a position to make a dying declaration. This had not been done by the prosecution in the instant case. Undoubtedly, as the evidence of the medical officer (P. W. 9) would clearly indicate, the deceased had sustained very serious injuries on the spleen, heart and lungs and intestine and the injuries noticed on the spleen, heart and lungs could Independently cause death In the ordinary course of nature. It was highly unlikely that in these circumstances, the deceased could make a dying declaration. ( 7 ) WHILE Judging the evidence with regard to an oral dying declaration, certain well settled principles should be kept in mind. Being a testimonial statement made out of Court, the declaration is open to discredit in the same way as the evidence of any other witness. The dying declaration is a piece of untested evidence and must, like any other evidence, satisfy the Court that what had been stated therein is the unalloyed truth and that it is absolutely safe to act upon it. A dying declaration must be closely scrutinized as to its truthfulness like any other important piece of evidence In the light of the surrounding facts and circumstances of the case, bearing in mind, on the one hand, that the statement Is by a person who has not been examined In the Court on oath and, on the other, that the dying man is normally not likely to implicate Innocent persons falsely. A dying declaration is not to be discarded for lack of details of the occurrence or on account of brevity of the statement when the deceased was in great agony at the time of making the statement. But a dying declaration cannot be made the basis for conviction when it suffers from infirmities and improbabilities. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the varacity of the statement by cross-examination. In order to be acted upon, the evidence with regard to an oral dying declaration should be subjected to strictest scrutiny and closest circumspection. The law laid down by the Supreme Court from time to time in this regard has been stated in Puma Chandra Singh v. State of Orissa. 2 ( 8 ) JUDGED in the light of the aforesaid principles relating to appreciation of evidence with regard to an oral dying declaration, It must be held that the evidence in the instant case, was far short of the mark and that the learned trial Judge had not kept in mind the settled principles of law with regard to the appreciation of such evidence. ( 9 ) THE only witnesses who have spoken about the oral dying declaration are P. Ws. 1 and 3. Being close relations of the deceased, they are not likely to rope in innocent persons. In the absence of independent and disinterested evidence, the evidence of relations although not to be discarded on the mere ground of relationship, is to be examined with great care. ( 10 ) THE evidence of P. Ws. 1 and 3 in this regard is at variance of which no due notice has been taken by the trial court. P. W. 1, the brother of the deceased, had deposed that when asked, the deceased informed him and P. W. 3 that Golap, Diliga and Litia had injured him by assaulting by means of axe and knife. It is important to keep in mind that in the first information report lodged by P. W. 1, he had given a different version in that he had stated therein that the deceased had given out that Litia and Diliga had assaulted him by means of axe and Knife. It is important to keep in mind that in the first information report lodged by P. W. 1, he had given a different version in that he had stated therein that the deceased had given out that Litia and Diliga had assaulted him by means of axe and Knife. Thus the name of the of the appellant No. 1, namely, Golap Naik, was conspicuous by its absence in the body of the first information report lodged by P. W. 1 and under the heading, Name and residence of accused, it had been mentioned that Litia, Golap and others had committed the offence. The absence of the name of the first appellant in the first information report could not be taken to be an inconsequential omission and this would vitally affect the evidence of P. W. 12 at the trial. Evidently because P. W. 1 as at the first-informant had not implicated the first appellant in the first information report, he had gone to the length of deposing at the trial that the contents of the first information report had not been read over to him. This game played by P. W. 1 while deposing in the Court should have been, but had not been noticed by the trial court. ( 11 ) WHILE P. W. 1 has given evidence that the deceased had implicate3d three persons as his assailants, the evidence of P. W. 3 is that the deceased informed them that Litia and Golap had assaulted him. Thus he had not testified that the deceased had also implicated the appellant Diliga. No, explanation in this regard was obtained by the prosecution, but the trial court unjustifiably found one. The trial court has observed that through oversight, this witness might not have given out the name of the appellant Diliga in his evidence. As the trial court was dealing with evidence relating to oral dying declaration, such a conclusion should not have been recorded without proper application of mind. ( 12 ) THERE is no evidence that immediately after P. Ws. 1 and 3 had received information from the deceased as testified by them in the Court, they hade informed anyone in the village about any such statement. ( 12 ) THERE is no evidence that immediately after P. Ws. 1 and 3 had received information from the deceased as testified by them in the Court, they hade informed anyone in the village about any such statement. Although ac cording to the deceased, he had allegedly been assaulted by means of an axe, the medical Officer had testified that none of the injuries sustained by the deceased could be so caused. According to the Doctor, the in juries could have been caused by means of a knife, but not by means of an axe. There is no evidence of anyone seeing the two appellants near abo9ut the spot, although the fact remains that the deceased was lying injured inside the house of the appellant Diliga. There was absence of evidence to indicate that no outsider had access to that house. ( 13 ) REGARD being had to the aforesaid features, weaknesses and improbabilities in the evidence with regard to the oral dying declaration said to have been made by the deceased, it would be extremely unsafe and hazardous to accept the evidence4 of P. Ws 1 and 3 and hold that deceased had made a dying declaration implication the two appellants as his assailants. For the aforesaid reasons, the order of conviction cannot be sustained. ( 14 ) IN the result, the appeal succeeds and is allowed. The order of conviction passed against both the appellants under section 304 Part I of the Indian Penal Code and the sentences passed against them there under are set aside. The appellants be set at liberty forth with. Appeal allowed. .