SANKAR BHATTACHARYYA, J. ( 1 ) HARI Patbandha alias Malu, Subhash Dhal alias Neta Purna Chandra Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati, the six appellants before us, were tried by a learned Additional Sessions Judge, Midnapore, on the following charges : -"first that you along with 2/3 others on or about 8-10-82 corresponding to 21st Aswin, 1387 B. S. at Gameria Mouja, P. S. Nayagram, were members of an unlawful assembly and did, in prosecution of the common object of such assembly, viz. , show of criminal force, to commit murder etc. committed the offence of rioting and at that time were armed with deadly weapons to wit, tabla, tangi, lathi etc. and thereby committed an offence punishable under S. 148, I. P. C. Secondly, that you on or about the same day and same place were members of an unlawful assembly and in prosecution of the common object some of the members of the said assembly did commit murder by intentionally causing the death of Sristhidhar Bera, which offence you knew to be likely to be committed in prosecution of the common object of the said assembly and thereby committed an offence punishable under S. 302/149, I. P. C. " ( 2 ) THEY, along with 5 others, were also charged under S. 120-B, Indian P. C. for entering into a criminal conspiracy to commit murder of Sristhidhar Bera in pursuance of which, the murder was committed. ( 3 ) ON conclusion of the trial the learned Additional Sessions Judge, while acquitting all the accused under ss. 120- B and 148, Indian P. C. , convicted the aforenamed six appellants under S. 302/149, I. P. C. and for such conviction, sentenced each of them to imprisonment for life and to a fine of Rs. 5,000/-, in default to rigorous imprisonment for six months more. The above order of conviction and sentence is the subject matter of challenge in the instant appeal. ( 4 ) PROSECUTION case, in brief, was as under. Sristhidhar Bera (deceased) was a resident of Dhobagobindapur where he used to live jointly with his 3 brothers, including Ananta (P. W. 1)and Benamali (P. W. 6 ). There was a long standing enmity between him and his brothers on the one hand and the appellants on the other, due to various litigations pending between them. Sristhidhar Bera (deceased) was a resident of Dhobagobindapur where he used to live jointly with his 3 brothers, including Ananta (P. W. 1)and Benamali (P. W. 6 ). There was a long standing enmity between him and his brothers on the one hand and the appellants on the other, due to various litigations pending between them. ( 5 ) ON 8-10-82 around 8 A. M. Sristhidhar left for Baligeria Hat on his bicycle. Within half an hour of his departure, some shepherds came to the village and reported that he had been severely assaulted inside the Gamaria forest by sharp cutting weapons. ( 6 ) GETTING the above information Ananta (P. W. 1), Benamali (P. W. 6), Jhapani (P. W. 5), wife of Sristhidhar and Nilmoni (P. W. 4), wife of Ananta, immediately rushed towards the Gamaria forest followed by some villagers. Reaching there, they found Sristhidhar lying inside the forest with bleeding injuries on the head, face and other parts of the body. He was writhing in pain and his bicycle was found lying near him. His face was washed with water and he was given water to drink. After recovery from the initial shock he disclosed, on being asked, that while proceeding to Baligeria Hat through the Gamaria forest he was assaulted by Hari Patabandha, Subhash Dhal, Purna Chandra Patbandha, Pratap Patbandha, Haribandhu Thayal and Sk. Subrati with axe, tabla, tangi and lathi. Besides the members of his family some co-villagers were also present when he made the above statement. ( 7 ) FROM the Gamari forest he was removed to the Baligeria Health Centre where, the Medical Officer Dr. P. Das (P. W. 10), declared him to be dead. From the Health Centre Ananta (P. W. 1) went to the Nayagram Police Station along with his brother-in-law Dayanidhi Senapati (P. W. 14) and lodged the First Information Report at 12. 15 P. M. on the basis of which, the police registered a case and took up investigation. ( 8 ) THE investigating Officer M. Roy (P. W. 17) went to the scene of the crime with Ananta (P. W. 1) and seized some blood stained and control earth and also the bicycle of Sristhidhar under two separate seizure lists. He then went to the Baligeria Health Centre, held inquest on the body of the deceased and thereafter sent it to the morgue for post-mortem examination. He then went to the Baligeria Health Centre, held inquest on the body of the deceased and thereafter sent it to the morgue for post-mortem examination. ( 9 ) BEFORE cremation when the body was being washed with water according to rituals by Ananta (P. W. 1) and others, a small pellet was found embedded near the left armpit of the deceased. It was taken out and handed over to the Investigating Officer and was seized under a seizure list. ( 10 ) ON completion of the investigation the police submitted charge-sheet against the appellants, which, in the usual course, ended in committal of the case to the court of session. ( 11 ) IN defence, the appellants pleaded innocence and alleged that they had been falsely implicated by Ananta (P. W. 1) and the men of his party due to previous enmity. ( 12 ) TO prove its case the prosecution examined all told 17 witnesses, while the defence examined none. ( 13 ) THE murder of Sristidhar is not challenged before us and has also been proved by overwhelming evidence. Ananta Bera (P. W. 1), Sk. Farid Ali (P. W. 2), Prafulla Bera (P. W. 3), Nilmoni Bera (P. W. 4), Banamali Bera (P. W. 6), Rajendra Bera (P. W. 7), Chowdhury Majhi (P. W. 8), and Sura Begum (P. W. 11) who rushed to the Gamaria forest on receipt of the information that Sristidhar was lying injured there found him writhing in pain with multiple bleeding injuries on the head, face and other parts of the body. ( 14 ) DR. P. C. Das (P. W. 10) the then Medical Officer of the Beligeria Health Centre who declared Sristidhar to be dead, deposed that he found several injuries on the body of the deceased whom he knew from before. ( 15 ) THE autopsy on the body of the deceased was conducted by Dr. Nirmalendu Bhattacharya (P. W. 15) who, on examination of the body found the following injuries :-"1. One incised wound 5'' X " X '' on the right side of the face cutting the right ear into two unequal parts and half of the ramus of the right mandible. 2. One incised wound7" X "x2"on the right side of the parieto-occipital region about 2'' above the right ear, cutting the right parietal and occipital bone and brain matter underneath. 3. 2. One incised wound7" X "x2"on the right side of the parieto-occipital region about 2'' above the right ear, cutting the right parietal and occipital bone and brain matter underneath. 3. One incised wound 4'' X 1/2'' X1/2'' in the right frontal region cutting the frontal bone and brain matter underneath. 4. One incised wound 1'' X '' X'' on the vertex half inch left to the midline-cutting the bone and brain matter underneath. 5. One circumscribed lacerated wound about 1/2'' in diameter on the frontal region just '' above the left upper archeal margin with comminuted fracture of the frontal bone and injury of the brain matter underneath. " ( 16 ) BESIDES the above injuries there were bruises on the right side of the back of the neck and over the left shoulder and scapular region. In the opinion of the autopsy surgeon, injury Nos. 1 to 4 that is, the incised injuries could be caused by a heavy sharp cutting weapon such as hatchet, tangi, bill-hook etc. while the rest of the injuries namely, the bruises could be caused by a hard blunt substance like lathi, iron rod etc. He further expressed the opinion that the death of the deceased was due to shock and haemorrhage as a result of the above injuries, which were ante-mortem and homicidal in nature. ( 17 ) THE evidence of the autopsy surgeon as regards the nature and the number of the injuries found on the body of the deceased as well as the cause of his death were not even challenged by the defence. The nature, number and the sites of the injuries can leave no room for doubt that the assailants inflicted the above injuries on Sristidhar with the intention of causing his death. That being the position, the murder of Sristidhar stands clearly established. ( 18 ) THE murder having been established, the next and the most crucial point for our consideration is whether the appellants were responsible for the murder. ( 19 ) TO establish its case, the prosecution adduced 3 categories of evidence namely : - (I) The evidence of the eye-witnesses Sk. ( 18 ) THE murder having been established, the next and the most crucial point for our consideration is whether the appellants were responsible for the murder. ( 19 ) TO establish its case, the prosecution adduced 3 categories of evidence namely : - (I) The evidence of the eye-witnesses Sk. Farid Ali (P. W. 2) and Prafulla Bera (P. W. 3) who claimed to have seen the assault on Sristidhar by the 6 appellants; (II) The evidence of Rajendra Bera (P. W. 7) who claimed to have seen the appellants and one of the acquitted accused namely, Bhagirath Pani running away from the Gamaria forest. According to Rajendra, Bhagirath was armed with a gun, while the 6 appellants were armed with axe, tangi, tabla, lathi etc. ; and (III) the dying declaration of Sristidhar to the effect that while passing through the Gamaria forest, he was assaulted by Hari Patbandha, Subhash Dhal, Purna Patbandha, Pratap Patbandha, Haribandhu Thayal and Sk. Subrati with axe, lathi, and tangi. ( 20 ) WE now proceed to examine the evidence presented during the trial to see whether the prosecution has succeeded in proving its case against the appellants beyond any reasonable doubt. ( 21 ) SK. Farid Ali (P. W. 2) is a resident of Dhobagobindapur and a co-villager of the deceased as well as the appellants. It is seen from his evidence that on 8-10-1982, between 8 and 8. 30 A. M. he and Prafulla (P. W. 3) of the same village were going to Baligeria Hat which is held on each Friday. While passing through the Gamaria forest, they were attracted by the report of a gun and went towards the direction of the sound. After proceeding some distance they found the six appellants viz. , Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal Pratap, Patbandha and Sk. Subrati assaulting Sristidhar with lathi, tangi, axe etc. They saw the assault from a distance standing behind a tree and being terror stricken at the ghastly sight, ran back towards the village. On the way, they came across Ananta (P. W. 1), brother of Sristhidhar and several others, who were, running towards the Gamaria forest. Guessing that Ananta had already received information of the assault, he and Prafulla joined Ananta's party and came to the spot where the assault took place. Reaching there, they found Sristidhar lying inside the forest with bleeding injuries. Guessing that Ananta had already received information of the assault, he and Prafulla joined Ananta's party and came to the spot where the assault took place. Reaching there, they found Sristidhar lying inside the forest with bleeding injuries. He was writhing in pain and a bi-cycle was found lying near him. ( 22 ) IT is seen from his cross-examination that after reaching the spot, he (P. W. 2) disclosed to Ananta and the members of his family that he had seen the assault on Sristidhar but did not disclose the names of the assailants out of fear. After returning to the village, he reported the incident to some of his co-villagers but, for the same reason, did not disclose the names of the appellants. ( 23 ) IT was elicited from Sk. Farid Ali in his cross-examination that he is distantly related to one Abdul Sattar who brought a case against the appellants alleging that they had set fire to his house. There is, however, nothing to indicate that he (P. W. 2) was in any way connected with the said case either as a witness for the prosecution or as a tadbirkar of Abdul Sattar. It was next suggested to him that there was a long standing enmity between the Muslims of the village and the appellants but the suggestion was stoutly denied by him. He was examined by the Investigating Officer on the same day but no contradiction between his substantive evidence and his statement before the Investigating Officer could be brought out by the defence. ( 24 ) THE evidence of Prafulla Bera ( P. W. 3) was more or less the same as that of Sk. Farid Ali. Prafulla's evidence goes to show that on 8-10-82 at or about 8 A. M. he was going to Baligeria Hat with Sk. Farid Ali. While passing through the Shal forest in mouja Gamaria they suddently heard the sound of firing and rushed towards the direction of the sound. After proceeding some distance they saw Sristidhar being assaultled by Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with tangi, tabla, axe and lathi. They saw the assault from some distance and being frightened turned back and ran towards the village. After proceeding some distance they saw Sristidhar being assaultled by Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with tangi, tabla, axe and lathi. They saw the assault from some distance and being frightened turned back and ran towards the village. On the way, they found Ananta (P. W. 1), Benamali (P. W. 6), and others rushing towards the forest and they too, joined them. Reaching the forest, they found Sristidhar lying there with bleeding injuries. He was writhing in pain and a bi-cycle was also found lying near him. ( 25 ) HE too, like Sk. Farid Ali stated in cross-examination that although he saw the assault on Sristidhar, out of fear, he did not disclose the names of the assailants to any one of the village. But he disclosed their names to the Investigating Officer when he was examined on the same night. On this point no omission could be brought out from the Investigating Officer by the defence. We, therefore, see no reason to disbelieve the above evidence or the explanation given for not disclosing the names of the assailants before arrival of the police. ( 26 ) IT was elicited in his cross-examination that he deposed as a prosecution witness against the appellants in the arson case brought at the instance of Abdul Sattar. In our opinion, he cannot be branded as a partisan witness simply because he deposed against the appellants on a previous occasion. There is nothing to indicate that he has any litigation against the appellants or is otherwise inimically disposed towards them. ( 27 ) IT has been vehemently argued by Mr. Banerjee, learned counsel for the defence, that the story of the sound of gun fire which allegedly attracted. P. Ws. 2 and 3 to the scene of the crime is a myth and a concoction and to support it, the prosecution had to invent the further story that a pellet was found embedded near the left armpit of the deceased. ( 28 ) ANANTA deposed to the effect that after taking delivery of the body of his brother from the morgue while he was washing the body before cremation according to rituals, he noticed a small pellet embedded near the left armpit of the deceased. He took it out and handed it over to the police which was seized under the seizure list (Ext. He took it out and handed it over to the police which was seized under the seizure list (Ext. 2 (d) ). ( 29 ) THE above evidence receives corroboration from Prafulla (P. W. 3) and also from Benamali (P. W. 6), another brother of the deceased. Benamali stated that he sent the pellet to the police through Ananta (P. W. 1 ). The seizure list (Ext. 2 (d) also indicates that the pellet was handed over to the Investigating Officer by Ananta on 11-10-82. ( 30 ) MR. Banerjee wants us to discard the above evidence as untrue since the autospy surgeon Dr. Bhattacharya (P. W. 15) did not find any pellet while conducting autopsy on the body of the deceased. In this connection, Mr. Banerjee has placed strong reliance upon the evidence of Dr. Bhattacharya (P. W. 15) in his cross-examination which was to the effect that he neither found any gun shot injury on the body of the deceased nor any pellet embedded in the body. ( 31 ) THE autopsy surgeon examined and described the injuries which were easily discernible to the naked eye during post-mortem examination and a small pellet embedded near the armpit might have easily escaped his notice specially when, the major injuries were located on the head and face only. In such a situation we are not inclined to reject the evidence of P. Ws. 1, 3 and 6 as regards the discovery of the pellet as untrue simply because the autopsy surgeon failed to notice it. ( 32 ) IN view of the above discussions, we see nothing to discard the evidence of the eye-witnesses namely P. Ws. 2 and 3 as unreliable, nor are we inclined to think that the explanation offered by them for not disclosing the names of the assailants to anyone except the Investigating Officer is improbable or unacceptable. After all, we cannot lose sight of the fact that they had the horrible experience of witnessing a most ghastly murder by some of their co-villagers who were still at large. In such a situation, it was not at all unnatural for them to apprehend reprisal from the assailants if their names were disclosed before the arrival of the police. This will also appear from the evidence of Ananta (P. W. 1) and others who heard the dying declaration, which we shall discuss later on. In such a situation, it was not at all unnatural for them to apprehend reprisal from the assailants if their names were disclosed before the arrival of the police. This will also appear from the evidence of Ananta (P. W. 1) and others who heard the dying declaration, which we shall discuss later on. In this connection, we may also point out that the ocular version of the assault given by P. Ws. 2 and 3 receives assurance from the Autopsy surgeon whose evidence has been discussed already by us. ( 33 ) WE now advert to the evidence of Rajendra Bera (P. W. 7 ). He too, is a resident of Dhobagobindapur. His evidence indicates that he had been to the house of his brother-in-law in village Murura in the district of Mayurbhanj in Orissa. Village Murura, according to him, is about 14 miles off from Dhobagobindapur. It is seen from his evidence that on 8-10-82 he was returning to Dhobagobindapur from Murura on a bi-cycle. At or about 8. 30 A. M. , while proceeding along the Pilot Road, about 1/4th mile away from the Gamari forest, he found Hari Patbandha, Purna Patbandha, Pratap Patbandha, Haribandhu Thayal, Subhash Dal and Sk. Subrati running away with lathi, tangi, axe, tabla etc. He also found the acquitted accused Bhagirath Pani running away with them holding a gun in his hand. ( 34 ) FOR the reasons stated hereinunder, we are not inclined to act upon his evidence as safe and dependable. First of all, had he been at a distance of only 1/4th mile from the Gamaria forest at the time of the incident, he must have had heard the report of a gun which was heard by P. Ws. 2 and 3. He did not, however, claim to have heard any sound of firing. Secondly, in his statement to the Investigating Officer under S. 161 Cri. P. C. he did not disclose that he saw Bhagirath in the company of the assailants. Thirdly, Sk. Farid Ali (P. W. 2) and Prafulla (P. W. 3) who saw the incident did not speak about the presence of Bhagirath anywhere near the scene of the crime. Fourthly, the deceased, in his dying declaration, did not mention the name of Bhagirath Pani. Since, Rajendra's evidence does not appear to us to be free from doubt, we leave it out of our consideration. Fourthly, the deceased, in his dying declaration, did not mention the name of Bhagirath Pani. Since, Rajendra's evidence does not appear to us to be free from doubt, we leave it out of our consideration. ( 35 ) WE are now left only with the alleged dying declaration made by the deceased. The witnesses who claimed to have heard the dying declaration are Ananta (P. W. 1), Sk. Farid Ali (P. W. 2), Prafulla Bera (P. W. 3), Nilmoni Bera (P. W. 4), Benamali Bera (P. W. 6), Rajendra Bera (P. W. 7), Chowdhury Majhi (P. W. 8) and Sura Begum (P. W. 11 ). Of them, Ananta (P. W. 1) and Benamali (P. W. 6) are the brothers of the deceased and Smt. Nilmoni Bera, (P. W. 4) is the wife of Ananta, while the rest are their neighbours. ( 36 ) IT appears from the evidence of Ananta (P. W. I) that he and his brothers, including the deceased, were joint in mess and property. On the morning of Aswin 21, 1389 B. S. corresponding to 8-10-82, around 8 A. M. Sristidhar (deceased) left for Baligeria Hat on a bi-cycle. At or about 8. 30 A. M. some small shepherd boys came to their village and reported that Sristidhar was lying inside the Gamaria forest with severe bleeding injuries. Getting the above information he, along with his wife Nilmoni (P. W. 4), brother Benamali (P. W. 6) and Jhapani (P. W. 5), wife of Sristidhar, immediately left for Gamaria forest, followed by some neighbours. Reaching there, they found Sristidhar lying inside the forest with bleeding injuries. He was writhing in pain and his bi-cycle was found lying near him. ( 37 ) THEY sprinkled water on his face and also gave him water to drink. After nursing, Sristidhar recovered to some extent from the initial shock and disclosed that while proceeding towards the Baligeria Hat, he was assaulted by Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with axe, tabla, lathi, tangi etc. ( 38 ) THE above evidence receives corroboration from Sk. After nursing, Sristidhar recovered to some extent from the initial shock and disclosed that while proceeding towards the Baligeria Hat, he was assaulted by Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with axe, tabla, lathi, tangi etc. ( 38 ) THE above evidence receives corroboration from Sk. Farid Ali (P. W. 2), Prafulla Bera (P. W. 3), Nilmoni Bera (P. W. 4), Benamali Bera (P. W. 6), Rajendra Bera (P. W. 7), Chowdhury Majhi (P. W. 8) and Sura Begum (P. W. 11) all of whom were present when the names of the assailants were disclosed by Sristidhar. Even if we exclude the evidence of Rajendra Bera (P. W. 7) who has been found to be not a very dependable witness, still there remains a host of witnesses to corroborate the evidence of Ananta (P. W. 1) with regard to the dying declaration of Sristidhar. ( 39 ) IT is true that Sristidhar and his brothers Ananta and Benamali had a long standing enmity with the appellants but then, enmity is a double edged weapon which might also constitute the motive for the crime. Also, we are not inclined to believe that had Sristidhar named some other persons as his assailants, Ananta and his wife and brother would falsely implicate the appellants only to wreak their vengeance against them by shielding the real culprits. ( 40 ) OF the villagers who accompanied Ananta and the members of his family, we have already discussed the evidence of the eye-witnesses Sk. Farid Ali (P. W. 2) and Prafulla (P. W. 3 ). They are competely independent witnesses having no reason to falsely implicate the appellants on a grave charge of murder. ( 41 ) CHOUDHURY Majhi (P. W. 8) is another co-villager of the deceased who deposed about the dying declaration. It was suggested to him by the defence that the acquitted accused Bhagirath Pani instituted a criminal case against him but he categorically denied the suggestion. No paper was produced by the defence to show that any such case was ever instituted against Chowdhury Mahji. Moreover Chowdhury, in his evidence, did not say that Sristidhar disclosed the name of Bhagirath as one of the assailants. In such circumstances we see nothing to suspect his veracity so far as the dying declaration is concerned. No paper was produced by the defence to show that any such case was ever instituted against Chowdhury Mahji. Moreover Chowdhury, in his evidence, did not say that Sristidhar disclosed the name of Bhagirath as one of the assailants. In such circumstances we see nothing to suspect his veracity so far as the dying declaration is concerned. ( 42 ) SURA Begum (P. W. 11) belongs to a different community and there could be no reason for her to oblige Sristidhar's brothers by falsely implicating the appellants. In cross-examination she was asked whether she was aware that appellant Pratap brought a case against her son Shyamlal Khan on the allegation that the latter had assaulted him. Her reply was that she was not aware of any such case and the defence did not pursue the matter any further. If Pratap had actually brought any such case, it was not at all difficult for him to produce papers to show the existence of the case but this, he did not do. The suggestion has, therefore, no substance and does not deserve any consideration. ( 43 ) IT was elicited from her cross-examination that she is the sister of Sk. Farid Ali (P. W. 2), a distant relative of Abdul Sattar on whose complaint an arson case was started against the appellants. It has, however, been pointed out above that Farid is in no way connected with the case. That being so, Sura Begum can, by no stretch of imagination, be branded as a partisan witness. ( 44 ) ALL the abovenamed witnesses consistently and unequivocally deposed that they heard Sristidhar naming the six appellants as the persons who assaulted him with lathi, tangi, axe, tabla etc. while he was passing through the Gamaria forest. There is absolutely no inconsistency in their statements as regards the names of the assailants or the weapons used by them during the assault. ( 45 ) THE defence has assailed the evidence regarding the dying declaration primarily on the ground that it was not possible for Sristidhar to make any statement after having sustained such grievous injuries. In this connection, the defence has placed strong reliance upon two decisions of the Supreme Court to which we shall presently refer. ( 45 ) THE defence has assailed the evidence regarding the dying declaration primarily on the ground that it was not possible for Sristidhar to make any statement after having sustained such grievous injuries. In this connection, the defence has placed strong reliance upon two decisions of the Supreme Court to which we shall presently refer. In K. Ramachandra Reddy v. Public Prosecutor, AIR 1976 SC 1994 the Supreme Court, while dealing on the subject of dying declaration, made the following observation :-"the dying declaration is undoubtedly admissible under S. 32 of the Evidence Act 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 that 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. 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. " ( 46 ) IN a later case (Darshan Singh v. State of Punjab, AIR 1983 SC 554 the question before the Supreme Court was whether the alleged dying declaration of the victim as deposed to by the witnesses could be relied upon. In the case under reference the evidence of the Autopsy surgeon indicated that the vital organs of the victim like the pertioneum, stomach and spleen were completely smashed and there were remote chances of his remaining conscious after receipt of injury No. 3 that is to say, the injury on the left iliac fosa which caused the rupture of the spleen. The incident took place at about midnight of the 29th and 30th Sept. The incident took place at about midnight of the 29th and 30th Sept. 1978, while the dying declaration was alleged to have been made at 7 A. M. on30th Sept. In such a situation, the Supreme Court refused to believe that the victim was in a fit state of mind and body to make any kind of coherent or credible statement relating to the circumstances which resulted in his death. ( 47 ) WE are not unmindful of the position that a dying declaration must be subjected to the strictest scrutiny and the closest circumspection and the court has to be on guard against the statement of the deceased being the result of either tutoring, prompting or a product of his imagination. That apart, the court must be satisfied that the deceased was in a fit state of mind to make the statement after he had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. ( 48 ) IN the light of the observations of the Supreme Court in the above mentioned cases, we now proceed to see whether Sristidhar was actually capable of making any statement as regards the circumstances resulting in his death, whether he had the opportunity to observe and identify his assailants and lastly, whether his alleged statement was the result of tutoring, prompting or a product of his imagination. ( 49 ) THE unchallenged evidence is that Sristidhar was assaulted sometime between 8 and 8. 30 A. M. Therefore, the assault took place in broad day light. The assailants whose names were disclosed by him were not only his co-villagers but also his close neighbours. That being the position, he had ample opportunity to see and recognise them specially when, as many as 7 injuries were inflicted upon him. ( 50 ) GETTING information about the assault not only the members of his family but also some of his neighbours rushed to the spot and the statement was made by the deceased immediately after he recovered from the initial shock as a result of nursing. The statement was a short one namely, that while he was passing through the forest, he was assaulted by Hari Patbandha, Purna Patbandha, Subhash Dhal, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with lathi, axe, tangi, tabla etc. The statement was a short one namely, that while he was passing through the forest, he was assaulted by Hari Patbandha, Purna Patbandha, Subhash Dhal, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with lathi, axe, tangi, tabla etc. ( 51 ) THE autopsy surgeon (P. W. 15) unequivocally stated that even after sustaining the injuries found by him during the post-mortem examination the deceased might remain conscious and might also be in a position to speak. The above opinion of the autopsy surgeon was not even challenged by the defence in cross-examination. We, therefore, see nothing to discard the opinion of the autopsy surgeon who is a medical expert. Although the injuries were severe in nature and ultimately resulted in the death of the victim, they, in our opinion, were not such as to unnecessary render him unconscious and speechless. ( 52 ) THERE was no scope for tutoring because the statement, as pointed out already, was made immediately after the deceased recovered from the initial shock. That apart; besides the members of his family, some of his neighbours were also present when the statement was made. We have already seen that the neighbours are completely independent witnesses having no animus against the appellants and they could have no reason to falsely implicate them on a grave charge of murder. It may also be noted that the dying declaration receives corroboration not only from the two eye-witnesses Sk. Farid Ali (P. W. 2) and Prafulla Bera (P. W. 3) who have been found by us to be independent and truthful witnesses but also from the evidence of the autopsy surgeon (P. W. 15) as regards the nature of weapons used in inflicting the injuries. ( 53 ) THE second ground on which the dying declaration has been assailed by the defence is that had the deceased actually named the appellants, why their names were not disclosed by his brothers and relatives not only to the villagers but also to Dr. P. C. Das (P. W. 10) the then Medical Officer of the Baligeria Health Centre, where the deceased was taken for treatment but was declared to be dead. ( 54 ) WE have noticed that the eyewitnesses (P. Ws. P. C. Das (P. W. 10) the then Medical Officer of the Baligeria Health Centre, where the deceased was taken for treatment but was declared to be dead. ( 54 ) WE have noticed that the eyewitnesses (P. Ws. 2 and 3) did not also disclose the names of the assailants to anyone of the villages although they saw the assault with their own eyes and the assailants were their neighbours. They offered explanation for non-disclosure of the names of the assailants before the arrival of the police and the explanation has been accepted by us as quite plausible. ( 55 ) THE same explanation was given by Ananta (P. W. 1) for not disclosing the names of the assailants, as stated by the deceased, not only to his neighours but also to the Medical Officer of the Baligeria Health Centre. He stated that he did not disclose the names of the asssailants, as reported by the deceased, to anyone including the doctor out of fear, although he told the doctor that the names had been disclosed to him by his brother. ( 56 ) THE above evidence finds corroboration from Dr. P. C. Das (P. W. 10), Medical Officer of the Baligeria Health Centre. His evidence was that he knew the deceased and his brother Ananta. When, therefore, the deceased was brought to the Health Centre with bleeding injuries and was found to be dead, he asked Ananta out of curiosity, as to how the deceased sustained the injuries. Ananta, however, refused to disclose the names of the assailants before him saying that he would disclose the names only to the police. This gives sufficient indication that though Ananta did not disclose the names of the assailants, he knew their names. ( 57 ) THE evidence indicates that the incident took place around 8. 30 A. M. Receiving the information that his brother had been severally assaulted he and others went to the Gamaria forest and after nursing him, took him to the Baligeria Health Centre in an improvised cot, Although, the time of their arrival at the Health Centre does not appear from the evidence, it may safely be presumed that they reached there round about 9. 30 A. M. After Sristidhar was declared to be dead by Dr. 30 A. M. After Sristidhar was declared to be dead by Dr. Das (P. W. 10), Ananta, along with his brother-in-law Dayanidhi Senapati (P. W. 14), immediately left for the police station with the death certificate issued by Dr. Das. Reaching their at about noon after covering a distance of about 20 K. Ms, he made a verbal complaint which was recorded by the Investigating officer (P. W. 17) at 12. 15 P. M. and treated as the First Information Report. In the First Information Report, Ananta clearly stated that the deceased told them that while going through the Gamaria forest on his bi-cycle he was assaulted by Hari Patbandha, Subhash Dhal, Purna Patbandha, Haribandhu Thayal, Pratap Patbandha and Sk. Subrati with lathi, tangi, axe etc. It was also stated in the First Information Report that his brother Benamali (P. W. 6), his wife Nilmoni Bera (P. W. 4), the deceased's wife Jhapani Bera (P. W. 5) and many others of the village were present when the above statement was made by the deceased. The First Information Report was lodged at the earliest opportunity, leaving no scope for concocting a false case against the appellants. In such circumstance, the fact that Ananta did not disclose the names of the assailants to the villagers or to the doctor appears to us to be of no moment at all and we see nothing to discard the explanation offered by him for such non-disclosure as an after-thought. ( 58 ) IN the First Information Report it was alleged that some small shepherd boys came to the village shouting that Sristidhar was lying injured in the Gamaria forest. In his cross-examination also, Ananta gave out that the boys from whom he got the above information were in the age group of 7 to 9 years. ( 59 ) BHANU Kanta Bera (P. W. 9) of Dhobagobindapur is a shepherd by profession. He deposed that on 8-10-82 at or about 7 A. M. after taking breakfast he went to the Gamaria forest for grazing cattle. Some small shepherd boys were also grazing their cattle with him. After about an hour or so, being attracted by the report of a gun they went in the direction of the sound and found Sristidhar lying on a beaten track inside the forest with bleeding injuries on his head and other parts of the body. Some small shepherd boys were also grazing their cattle with him. After about an hour or so, being attracted by the report of a gun they went in the direction of the sound and found Sristidhar lying on a beaten track inside the forest with bleeding injuries on his head and other parts of the body. They also found a bicycle lying near him. Seeing Sristidhar in such condition, he and the shepherd boys ran towards the house of Sristidhar. They met the inmates of the house and after reporting the incident to them, went back to the forest to look after their cattle. ( 60 ) MR. Banerjee, learned counsel for the defence, points out that though, according to Ananta, he got the above information from some shepherd boys aged between 7 and 9 years, Bhanu Kanta Bera (P. W. 9),according to Nilmoni Bera (P. W. 4), is about 40/50 years of age and, that being so, he could not have reported the incident as claimed by him. ( 61 ) WE see no substance in the contention of Mr. Banerjee. Bhanu (P. W. 9), as his evidence indicates, did not go alone but was accompanied by some of the shepherd boys who also were grazing cattle in the Gamaria forest with him. Ananta's evidence goes to show that the shepherds came running to the village shouting that Sristidhar was lying injured in the Gamaria forest which was heard not only by him but also by his neighbours. There is, therefore, no question of any particular shepherd reporting the incident to Ananta and it seems to us that all of them reported the incident in a chorus. It is, therefore, quite immaterial whether Ananta heard about the incident from Bhanu Kanta Bera (P. W. 9) or from the shepherd boys. In this connection, it may be mentioned that the report of the gun was heard not only by the eye-witnesses (P. Ws. 2 and 3) but also by Bhanu (P. W. 9) although it is not known who fired the gun and from which place. ( 62 ) IT may however be pointed out that the police recovered a gun and 3 live cartridges from the house of the acquitted accused Bhagirath Pani under the seizure list (Ext. 2 (e)) and sent them together with the pellet found in the body of the deceased, to the ballistic expert. ( 62 ) IT may however be pointed out that the police recovered a gun and 3 live cartridges from the house of the acquitted accused Bhagirath Pani under the seizure list (Ext. 2 (e)) and sent them together with the pellet found in the body of the deceased, to the ballistic expert. The report of the ballistic expert (Ext. 6) indicates that traces of firing were detected in the barrel of the gun which was found to be in working condition. The ballistic expert also expressed the opinion that the pellet could be a lead pellet used in the cartridge shot of size No. 3. ( 63 ) WHOEVER might have fired the gun, must have fired it from a considerable distance because he was not seen by the eye-witnesses. Moreover, only one pellet was found in the body of the deceased without any singing and it was embedded just below the skin which could easily be brought out by Ananta. ( 64 ) FOR the foregoing reasons, we see nothing to disbelieve the evidence regarding the dying declaration which is supported by the evidence of the two eye-witnesses (P. Ws. 2 and 3 ). The dying declaration, together with the evidence of the eye-witnesses, can therefore leave no room for doubt that all the six appellants are responsible for the murder of Sristidhar and they were, therefore, rightly convicted on the charge of murder. ( 65 ) WE have pointed out already that the lower court acquitted the appellants of the charge under S. 148 I. P. C. The common object of the unlawful assembly, as alleged in the charge under S. 148 I. P. C. , was also the common object in the charge under S. 302/149 I. P. C. In such circumstances, having acquitted the appellants of the charge under S. 148 I. P. C. , the lower court could not lawfully convict the appellants under S. 302/149 I. P. C. ( 66 ) THERE is, however, no bar in convicting the appellants under S. 302/34 I. P. C. , as the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would have been the same if the charge was under S. 34, I. P. C. and there can, therefore, be no question of any prejudice to the appellants if they are convicted under S. 302/34. I. P. C. The evidence discloses that they came together, conjointly attacked the deceased and went away together after inflicting the fatal injuries. The attack must have been the result of a pre-meditated plan to murder Sristidhar, Their plan, presence and participation with respect to the crime in question having been established beyond any reasonable doubt, they must be convicted under S. 302/34 I. P. C. ( 67 ) IN the result, we convert the conviction of the appellants under S. 302/149 I. P. C. to one under S. 302/34 I. P. C. In our opinion, the sentence of imprisonment for life awarded to the appellants by the lower court will sufficiently meet the ends of justice and the sentence of fine is uncalled for. We therefore, while maintaining the sentence of imprisonment for life against the appellants, set aside the order of sentence of fine. The appeal is allowed only to the extent indicated above. ( 68 ) J. N. HORE, J. :- I agree. Order accordingly.