J. N. HORE, J. ( 1 ) ALL the II appellants were arraigned before the learned Additional Sessions Judge, Durgapur to answer the following charges: Firstly: That you on or about the 13th day of February 1982 corresponding to 1st Falgoon 1388 B. S. at the field on the North of B More and on the west of Carmel School (Phuljhore) P. S. N. T. S. Durgapur, District Burdwan were a member of an unlawful assembly, and did in prosecution of the common object of such assembly viz, in committing murder to Ashutosh Chakraborty, father of Shri Mohitosh Chakraborty of Phuljhore P. S. B. T. S. Durgapur, District Burdwan commit the offence of rioting with deadly weapons to wit with dao, iron rod etc. and thereby committed an offence punishable under Section 148 I. P. C. Secondly: That you on or about the same day and at the same place were a member of unlawful assembly and in prosecution of the common object of which viz, in committing murder to Ashutosh Chakraborty, father of Shri Mohitosh Chakraborty of Phuljhore P. 5. N. T. S. Durgapur, Districtburdwan, some of the members committed murder by intentional causing the death of said Asutosh Chakraborty and you are thereby under Section 149 I. P. C. guilty of causing the said murder, an offence punishable under Section 302 I P. C. ( 2 ) ON completion of the trial, all the 11 appellants were found not guilty of both the charges and acquitted thereof. They were, however, found guilty of the offence punishable under Section 302, read with Section 34 of the Indian Penal Code, convicted thereunder and sentenced to imprisonment for life. The appellants seek to assail the said order of conviction and sentence in this appeal. ( 3 ) APPELLANT Ramdas Roy who was a Child within the meaning of Section 2 (d) of the West Bengal Children Act, 1959 was acquitted by us and the learned Sessions Judge, Burdwan was directed to get him tried in according with the provisions of the said Act by our order dated April 19, 1988 when the appeal was taken up for hearing so the appeal now proceeds in respect of the remaining 10 appellants only. ( 4 ) BRIEFLY stated, the prosecution case was as under: "ashutosh Chakraborty (the deceased) of village Phudhore, P. S. N. T. S. Durgapur, District Burdwan, was a school teacher and a quack who was popularly known as Ashu Daktar. The appellants also belong to the same village. There was a longstanding enmity between the deceased on the one hand and the appellants on the other arising out of village fued and political rivalry. The deceased and the appellants belonged to rival factions of Congress (1) respectively. On 13-2-82 between 7. 00 p. m. being attracted by a row calling from the western side of the pitch road Mahitosh Chakraborty (PW 1), son of the deceased, came out of the house and met one Syamal Kumar Nayak who reported to him that his father (Mahitoshs) had been seriously assambled at Puljhore Darga. Mohitosh rushed to the place followed by Syamal Nayak, Syamadas Nayek (PW 3), Amar Shankar Adhikari and his brother Monotosh (P. W. 1 ). He reached a place to the west of the Kaimal School and north of B-i Mora and found his father lying on a bi-cycle with serious injurious on the head. He took up the head of his father on his lap and asked him who were the assailants At this his father told him that the members of the Roy family old finished him. Being further questioned by Mahitosh about the identity of the members of the Roy family, he mentioned the names of the ii accused- appellants and two or three other persons which were not alldible because of his choked voice, immediately thereafter he became silent. On receipt of some information, S. I. Ashoke Kumar Roy the then Officer-in-Charge, N T. S. Police Station (PW 13) arrived at the place of occurrence and removed the injured to M. A. M. C. Hospital where he was declared by the doctor to be dead. PW 1 lodged a written complaint at 9. 15 P. M. which was forwarded by PW i3 to the police station for drawing up the formal First Information Report and starting a case under Section 302/34 read with i20 B, Indian Penal Code against the accused-appeliants. PW i3 took up investigation and after completion of the investigation submitted charge-sheet which, in the usual Course, ended in the committal of the case to the Court of Sessions. PW i3 took up investigation and after completion of the investigation submitted charge-sheet which, in the usual Course, ended in the committal of the case to the Court of Sessions. In defence, the appellants pleaded innocence alleging that they had been falsely implicated out of enmity. In order to bring home the charges to the accused the prosecution examined i4 witnesses which the defence examined none. ( 5 ) THE murder of Ashutosh Chakraborty is not disputed before us and has also been proved by overwhelming evidence P. Ws. 1, 2 and 3 saw the deceased lying on his bi-cycle with serious bleeding injuries on his head. He was removed to the hospital where P. W. 4 Dr. A. Mukherjee declared him to be dead. P. W. 7 Dr. P. R. Mukherjee, M. O. attached to Durgapur Sub-Divisional Hospital who held the post-mortem examination on the body of the deceased found the following injuries: 1. One curved incised wound 5 X 1/3 X skull on the left side of occipital bone away from the mid-line, 1 1/2 of the occipital bone 1/2 in depth was clearly cut and separated. Brain matter was exposed. 2. Incised wound 7 X i/3 X skull in the middle of the occipital region obliquely placed. 3. Incised wound 9f X i X skull in situated 3/4 away from the mid-line in the left parietooccipital region. There was fracture of the parietal and occipital bone at this region. A margin of the bone was clean cut. 4. Incised wound 3 X i/3 x skull in the left temporo-occipital region, mote or less horizontally placed. The, wound started 1/2 behind the middle of the left ear. There was fracture of temporal and occipital bone at this Page 3 of 7 region. The margin of the bone was clean cut. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of the above mentioned injuries which were ante-mortem and homicidal in nature. According to the doctor, the injuries could be caused with a like Mat. Ext. VI which was seized from Bear the place of occurence. The nature, number and the sites of the injuries and the weapon used do not leave any doubt that the injuries were inflicted with the contention of causing death. It is a case of brutal murder perpetrated with in human cruelty. Ext. VI which was seized from Bear the place of occurence. The nature, number and the sites of the injuries and the weapon used do not leave any doubt that the injuries were inflicted with the contention of causing death. It is a case of brutal murder perpetrated with in human cruelty. ( 6 ) THE next, question, and the crucial one, for our consideration is whether the appellants or any of them were responsible for the death of the deceased. ( 7 ) THE prosecution case rests entirely on the oral dying declaration of the deceased. P. W. 1 Mohitosh Chakraborty, PW 2 Monotos Chakraborty and PW 3 Syamadas Nayak are the witnesses to the alleged dying declaration of the deceased. Let us first adver to the testimony of PW 1 Mahitosh Chakraborty, son of the deceased. His evidence is that on 13-2-82 between 7-00 P. M. and 7. 30 P. M. he heard a row coming from the western side of the village. He came out of his house and met Syamal Kumar Nayak who informed him about the murder of his father. He along with his brother Monotosh (PW 2), Shyamadas Nayek (PW 3), Shyamal Kumar Nayek, Amar Adhikari and others proceeded to the place wherefrom the row was coming. They reached a place to the west of Karmel School and north of B. [morh, which was lighted by the electric street-lights. He saw his father lying on the cycle with severe bleeding injuries on the head He sat down at that place and took the head of his father on his lap and asked him who had caused the injuries. His father told him that the sons of Roy Bad had finished him. He then asked his father who were the sons of Roy Bad. His father stated that they were Dilip Roy, Santimoy Roy, Deben Roy, Ajit Roy, Sudhansu Roy, Madhab alias Kiriti Roy, Madan Roy, Ramdas Roy, Arup Roy, Manmohan Roy and Bablu Gope. His father also uttered the names of some other persons But his speech became inalldible and he could not follow him. His evidence goes to show that the deceased was returning from market on his bi-cycle with vegetables and other articles purchased from the market. P. WS. 2 and 3 corroborate the testimony of PW 1 regarding the alleged dying declaration of the deceased. His evidence goes to show that the deceased was returning from market on his bi-cycle with vegetables and other articles purchased from the market. P. WS. 2 and 3 corroborate the testimony of PW 1 regarding the alleged dying declaration of the deceased. PW 2 was in a tea-stall situated near the pitch road, Suddenly he heard a sound coming from the side of Karmel School. He saw his brother PW 1. Syamapada Nayak (PW 3) and Amarsankar Adhikary running towards Karmel School. On his query PW 1 told him that their father had been assaulted. He then, followed PW 1, went to the place of occurrence and saw his father lying on the cycle with bleeding injuries on the head in the light of the street electric lamps. PW I then took the head of his father on lap and asked him as to what had happened to him and who had assaulted him. His father told PW 1 in his presence that the members of the Roy family had assaulted him. He (the deceased) also disclosed the names of the members of Roy family who had assaulted him. They were Dilip Roy, Santimoy Roy, Madan Roy, Madhab Roy, Kiriti Roy, Sudhansu Roy, Deben Roy, Ramdas Roy, Bablu Gope, Moni Roy and Ajit Kumar Roy. He also uttered names of two other persons which were ineludible. He referred to the names of 10 persons. PW 3 Sayamadas Nayak is a resident of village Phuljhore. His evidence is that on 13. 2. 1982 between 7. 00 and 7. 30 p. m. he was standing in front of the shop of Syamal Nayak situated on the eastern side of the pitch road when he heard a shout coming from the west of the pitch road. They did not pay much attention to this shout. At that time two boys of Phuljhore danga came there and informed that Ashu doctor had been assaulted and he had fallen on the ground. Hearing this news Shyamal Nayak went to the house of the victim to inform his relations. Some time after he saw Shyamal Nayak coming on the pitch road along with PW I and Amar Sankar Adhikari, he allowed them. Mohitosh, and Monotosh were running fast and they reached the P. O. first. He reached the P. O. immediately after them. Hearing this news Shyamal Nayak went to the house of the victim to inform his relations. Some time after he saw Shyamal Nayak coming on the pitch road along with PW I and Amar Sankar Adhikari, he allowed them. Mohitosh, and Monotosh were running fast and they reached the P. O. first. He reached the P. O. immediately after them. He noticed Ashu Chakraborty lying on a bicycle with bleeding injuries on the head. PW 1 took the head of his father on his lap and asked him what had happened to him and who had assaulted him. Ashu Chakraborty told PW I that the members of Roy family had assaulted him He disclosed the names of these members of Roy family as Dilip Roy, Ajit Roy, Kiriti Roy. Madan Roy, Santimoy Roy, Ramdas Roy, Arup Roy, Monimohan Roy, Deben Roy and Bablu Gope. Police arrived there within a short time and removed the injured to the hospital in a jeep. ( 8 ) IF the above dying declaration can be accepted as true and reliable, it may form the sole basis of conviction without corroboration from any independent source. Police arrived there within a short time and removed the injured to the hospital in a jeep. ( 8 ) IF the above dying declaration can be accepted as true and reliable, it may form the sole basis of conviction without corroboration from any independent source. The law on this point has been succintly laid down by the Supreme Court in Khushal Roy v. State of Bombay, as follows: (1) It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declartion, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. ( 9 ) HENCE, 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 veracity of the statement by cross-examination But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. ( 10 ) IF, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, than without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, But from the fact that the Court; in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case. In K. Ramchandra Reddy and another v. The Public Prosecutor, the Supreme Court has similarly held that the dying declaration is undoubtedly admissible under Section 32 and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. ( 11 ) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practice cable, in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. In order to test the reliability of a dying declaration the Court has to keep in view to the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control, the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. ( 12 ) BEARING the above in mind let us now proceed to consider whether the alleged dying declaration can be accepted as true and reliable and safely acted upon. ( 13 ) THERE are some discrepancies in the evidence P. Ws. 1, 2 and 3 about the alleged dying declaration itself. According to PW 1 the deceased stated that the sons of Roy Bant had finished him But according to PW5. 2 and 3 the deceased made a statement that members of the Roy familyt had assaulted him. Sons of Roy Ban and members of Roy family are not co-extensive. According to PW I, on his query as to who were the sons of Roy Ban the deceased disclosed the names of the 10 appellants But PW5. 2 and 3 do not, Bay that PW 1 made any such query. According to PW5. Sons of Roy Ban and members of Roy family are not co-extensive. According to PW I, on his query as to who were the sons of Roy Ban the deceased disclosed the names of the 10 appellants But PW5. 2 and 3 do not, Bay that PW 1 made any such query. According to PW5. 1 and 2, Kirti Roy was also described as Madhav But according to PW 3 the deceased did not mention any such alias of Kirti Roy. According to PW 1, the deceased mentioned the name of Ajit Krishna Roy. Accordirlg to PW 2, the deceased mentioned the name of 10 persons as his assailants and did not mention the name of appellant Arup Roy. Both PW s. 1 and 2 have deposed that the deceased also uttered 2 or 3 other names which were inalldible But PW 3 does not support them in this respect. Admittedly, Bablu Gope is not a member of the Roy family though the evidence shows that he is a friend of the Roy appellants. The alleged disclosure of the name of Bablu Gope by the deceased is consistent with his statement that the members of the Roy family had assaulted him. The evidence of PW 13, the Investigating Officer shows that on his arrival at the place of occurrence he saw the body of Ashubabu on the cycle and his head was suspended towards the ground. PW s. 1, 2 and 3 also saw the deceased in that position on arrival at the place of occurence. The story of P. W. is taking the head of his father on his lap on arrival at the place of occurence, can, therefore be hardly believed. P. W. 1 has stated in cross examination that it was only after the arrival of police that he removed the head of his father from his lap to the ground But he did not place, the body of his father over the cycle keeping his face towards the earth. P. W. 13 did not see P. W. 1 removing the head of his father from his lap and placing it on the ground. The testimony of P. W. 13 that he saw the body of the deceased lying on the cycle with his head dropping towards the ground gives a lie to the evidence of P. W. 1. P. W. 13 did not see P. W. 1 removing the head of his father from his lap and placing it on the ground. The testimony of P. W. 13 that he saw the body of the deceased lying on the cycle with his head dropping towards the ground gives a lie to the evidence of P. W. 1. According to P. W. 1, the lungi which he was wearing was stained with blood and his hands were also stained with blood But the lungi has not been seized and P. W. 13 does not support P. W. 1 in this respect. The evidence also discloses that P. Ws. 1 and 2 did not make any attempt to nurse the deceased or take any step for his immediate removal to a hospital. The deceased sustained four serious injuries on the head. 1 1/2 of the occipital bone 1/2' in depth was cle anly out and separated and the brain matter was exposed. There was fracture of the parietooccipital bone and a margin of the bone was clean out. There was also fracture of temporal and occipital bone. P. W. 13 seized pieces of skull bone under the seizure list Ext. all. The deceased was aged about 60 years and the evidence of the alltopsy surgeon show that he was of thin build. According to P. W. 4, Dr. A Mukherjee, the deceased after sustaining these injuries might have died instantaneously. According to P. W. 7, it is not possible to say definitely as to how long a Patient may act volitionally after receipt of such injuries. 11 depends upon the patients capability to bear the shock. Now, the evidence does not disclose the precise time of the assalllts and the arrival of P. Ws. 1, 2 and 3 on the spot. But it appears from the evidence that some considerable time must have elapsed before the witnesses arrived at the place of occurence. Two boys of Puljhore danga came to the tea stall of Shyamal and informed P. W. 3 and Shyamal about the incident The information was given in the words Ashu daktarke mere fele diyecle, (Ashu daktar has been killed ). According to the two boys who gave the information to PW 3, Ashutosh Chakraborty was already dead. Two boys of Puljhore danga came to the tea stall of Shyamal and informed P. W. 3 and Shyamal about the incident The information was given in the words Ashu daktarke mere fele diyecle, (Ashu daktar has been killed ). According to the two boys who gave the information to PW 3, Ashutosh Chakraborty was already dead. It may be mentioned here that none ofthese boys who might have witnessed the occurrence has been examined and no explanation for their non examination is forthcoming. Shyaml Nayak then went to the house of PW 1 and informed him about the incident. The evidence does not disclose the distance between the tea stall and the house of PW 1. The distance between the house of P. W. 1 and the place of occurrence is about 700/800 cubits. On receipt of the information from Shyamal Nayak, PW 1 rushed to the place of occurrence followed by the other witnesses. We do not know whether the two boys informed PW 3 about the incident immediately after the occurrence of after a lapse of some time. Some time, say about 10. minutes, must have elapsed before the arrival of the, witnesses to the place of occurrence. It is highly improbable that the deceased, if not already dead or unconscious, was in a fit condition of body and. mind to male a conscious and voluntary statement with full understanding of the mind. According to PW5. 1 to 3 some of the names uttered by the deceased were inalldible and thereafter he became speechless. The injuries were inflicted from behind. It is doubtful whether the deceased had any opportunity to observe as many as II assailants and remember their names correctly so as to reproduce the same with aliases to PW5. 1, 2 and 3. The possibility that the alleged statement of the deceased, if any, \vas the product of imagination of the deceased or prompting by PW 1, particularly in the background of the admitted enmity, cannot be ruled out. The learned Additional Sessions Judge did not consider these infirmities in the alleged dying declaration. ( 14 ) IN view of the facts and circumstances of the case as referre- to above, we consider it entirely unsafe to act upon the alleged dying declaration and uphold the conviction without corroboration from any independent source which is wholly wanting in this case. ( 14 ) IN view of the facts and circumstances of the case as referre- to above, we consider it entirely unsafe to act upon the alleged dying declaration and uphold the conviction without corroboration from any independent source which is wholly wanting in this case. The conviction of the appellants under Section 302{34 of the Indian Penal Code, cannot, therefore, be sustained. ( 15 ) FOR the foregoing reasons, we allow the appeal and set aside the order of conviction and sentence. The appellant who are on bail are discharged from their bail bonds. Appeal allowed .