Judgment S.H.S.Abidi, J. 1. Appellant Dhobi Yadav (father) has been convicted under Sec. 304 Part ill of the Indian Penal Code and has been given four years rigorous imprisonment and appellant Suresh Yadav (son) had been convicted under Sec. 304 Part II read with Sec. 34 of the Indian Penal Code and Sec. 379 of the Indian Penal Code and has been given four years and four months rigorous imprisonment respectively by the learned 4th Additional Sessions Judge, Munger, against which this appeal has been preferred by them. 2. The case of the prosecution was that on 16-10-77 at about 7 a.m. when the informant Ganga Singh (the deceased) at Village Mahmadpur, Police Station Surajgarh District Munger, was tieing his shebuffalo at his Bathan, the two accused went to his Bathan. Accused Dhobi Yadav gave a few Hurrah blow on the chest and shoulder of the victim. (Ganga Singh) who fell down. Rupees 110.15 paise which were in the waist of the victim was taken away by Suresh Yadav. One bucket with milk was also taken away by them. Both then ran away. This occurrence is said to have been seen by Prasadi Lal and Mithoo Mochi (P.Ws. 2 and 5 respectively). The victim was then taken to Surajgarh State dispensary where his Fardbeyen was recorded on 17-10-78 at 4.30 p.m. by the Sub-Inspector of Police, Ramayan singh (C.W.1.). for the offence under Secs. 323 and 379 of the Indian Penal Code. But later on the victim was sent to Munger - Hospital where he died on 18-10-1978 and so the case was converted into one under Sec. 304 of the Indian Penal Code. The motive for the offence is said to be that there was a quarrel between the appellants Suresh Yadav, Dhobi Yadav and the brother of the victim. 3. It is said before the victim died on Munger Hospital, his dying declaration (Ext. 4) was recorded by the Block Development Officer (BDO) (not examined). The post mortem examination was conducted by Dr. H.N. Gupta (not examined) whose report has been brought on the record as Ext. 2. After investigation charge-sheet was submitted and the case was committed to the court of Sessions. 4. The accused in defence denied the prosecution case and alleged their false implication in this case. No witness in defence was examined. 5. The prosecution in support of its case examined eight witnesses. 2. After investigation charge-sheet was submitted and the case was committed to the court of Sessions. 4. The accused in defence denied the prosecution case and alleged their false implication in this case. No witness in defence was examined. 5. The prosecution in support of its case examined eight witnesses. Kamal Hasan (P.W.1) is said to have recorded the Fardbeyan of the brother of the deceased on 18-10-1978 but the brother of the deceased has not been examined as he is reported to be dead. P.W. 2 is Prasadi Lal, an eye witness mentioned in the F.I.R. So is Mithoo Mochi (P.W.5), a witness of the F.I.R. who has been declared hostile by the prosecution and was cross-examined. P.W.3 is Shibdani Singh and P.W.4 is Sia Sharan, son of the deceased, though both have not been mentioned in the F.I.R. but they have deposed as eye witnesses. P.W. 6 is Dr. Upendra Singh, incharge of the Surajgarh dispensary who has said that he has referred the victim to the Munger Hospital on 17 -10-78 and that the victim had stayed in the dispensary for 21/2 hours and the B.D.O. has recorded the dying declaration and it is also said by him that there was no apparent external injury on the person of the victim. P.W.7 is Subhash Chandra Prasad, a lawyers clerk who has proved the post mortem report (Ext. 2). P.W. 8 is Rajendra Prasad, a lawyers clerk who has proved the dying declaration Ext.4 which is said to have been recorded by the B.D.O. (not examined). C.W.I is Ramayan Singh, S.I.,.the first I.0. who had recorded the Fardbeyan and had done the investigation after registering the case, going to the spot and examining some of the witnesses. But after some time he has handed over the charge of investigation to another I.O. namely R.N. Dubey not examined). The Trial Court after considering the entire materials on the records bas convicted and sentenced the two appellants as said above. 6. The factum of death of the victim Ganga Singh has been proved by the prosecution witnesses and has not been disputed by the accused as such this aspect is not to be dealt with. 7. The learned Counsel for the appellants has challenged the order of conviction on various grounds. 6. The factum of death of the victim Ganga Singh has been proved by the prosecution witnesses and has not been disputed by the accused as such this aspect is not to be dealt with. 7. The learned Counsel for the appellants has challenged the order of conviction on various grounds. His contention was that the two declarations namely the Fardbeyan and the dying declaration recorded by the I.O. and the B.D.O. respectively are not reliable. The Fardbeyan has been recorded that next day after about 20 hours of the occurrence which delay has not been explained. The dying declaration recorded by the B.D.O. is also not reliable as neither the B.D.O. has been examined nor any witness attesting the same is there, nor the L.T.I. of the victim on the dying declaration has been proved. Besides all these the dying declaration is not in questions and answers form. It next contended that the post mortem report is not to be relied on as the Doctor who has conducted the post mortem has not been examined. So this medical evidence cannot be looked into and bringing the document on the record as Ext. 2 through P.W. 7, the lawyers clerk, will not make it an evidence to be relied on. It was also urged that the prosecution witnessed Nos. 2 and 5 have not supported the prosecution case and have made embellishment, so they cannot be relied on. The non F.I.R. witnesses are also unreliable. Thus the oral evidence by the prosecution is also. untrustworthy. It was also urged that the second I.O. has not been examined and so prejudice has been caused. It was contended that in any event it is not a case under Sec. 304 of the Indian Penal Code and even the case under Sec. 34 of the Indian Penal Code against appellant No.2 is not made out. The genesis of the occurrence is the eating away of the goat by the victim as well as his brother Dhuri which has not been proved and so the prosecution case itself is shattered. Though the motive for the offence has been suggested but not proved and it was incumbent upon the prosecution to have proved the same. 8. The genesis of the occurrence is the eating away of the goat by the victim as well as his brother Dhuri which has not been proved and so the prosecution case itself is shattered. Though the motive for the offence has been suggested but not proved and it was incumbent upon the prosecution to have proved the same. 8. As to the contention about the delay in the Fardbeyan of about 20 hours, it appears that the Fardbeyan of the victim Ganga Singh has been recorded at the Surajgarh dispensary on 17-10-1978 at 4.30 p.m. C.W.I. Ramayan Singh has said that on that day he was S.I. of Police at the Police Station. He got an O.D. slip from the Doctor and went to the dispensary where he met injured Ganga Singh. Whatever he said he recorded the same and it was read over to him and it was signed by him which is Ext 1. Thereafter he sent requistion to the B.D.O. to write dying declaration and the victim was again examined. His injuries were also examined. It is the same dying declaration (Ext.4). It was then sent to this S.I. by the B.D.O. and thereafter he came to the Police Station and registered the F.I.R. (Ext. 2) He has further said than on 16-10-1978 an O.D. slip was received from Surajgarh dispensary for which Sanha entry No. 303 was recorded. R.N. Dubey another I.O. of Surajgarh Police Station went to the dispensary and after return form there he wrote Sanha entry No. 305. He (C.W.l) has said in the crossexamination that on 16-10-78 he saw Sanha entry Nos. 303 and 305 and wrote in the diary. 9. The statement of P.W.2 is that the victim was taken to the hospital by Bhagwat and Dhuri Singh and also by Sia Sharan (P.W.4). son of the victim. P.W. 4, though not mentioned in the F.I.R. says that Mithoo Mochi, Prasadi Lal and Sheodani along with him has taken the victim to the hospital for the same day and for the next night and next day he was sent to the Munger hospital. Mr. Upendra Singh (P.W.6) of Surajgarha dispensary has said that the victim was in the hospital on 17-10-78 where the dying declaration was recorded. But he says that the victim was there for 21/2 hours. Mr. Upendra Singh (P.W.6) of Surajgarha dispensary has said that the victim was in the hospital on 17-10-78 where the dying declaration was recorded. But he says that the victim was there for 21/2 hours. On the basis of this evidence it appears that the victim was taken to the hospital the same day immediately after the occurrence and O.D. sliP was sent to the Police Station and R.N. Dubey had gone to the hospital for which sanha entries No. 303 and 305 are there. 10. Now there are two things-R.N. Dubey has not been examined and statement of the Doctor is that the victim was therefor 21/1 hours. Learned Counsel for the appellants urged that the Sanha entries have not been proved and the Doctors statement of stay of the victim for 21/2 hours shows that the victim has taken to the hospital not on 16-10-78 but on the second day. Though R.N. Dubey has not been examined, but C.W.l who is neither the prosecution witness nor defence witness but a court witness and had also been the first I.O. has been clear in saying that he had seen the Sanba entries and has copied out the same in the case diary. The existence of these entries has not been questioned by the accused. If the same would have been questioned and the entries would not have been produced by the prosecution then an adverse inference could have been drawn. Merely because R.N. Dubey has not been produced will not make the entries doubtful. Further merely the statement of the Doctor that the victim was there for 21/2 hours will not make the statement of the son and the other witnesses unreliable when the Sanha entries are there and further the Doctor himself says that he has got no paper to refresh his memories and Ganga Singh was not known to him from before. Thus in view of the two statements of the witnesses as well as C.W. I it cannot be said that the victim did not reach the dispensary on the 16th only. 11. The witnesses have admitted that the place of occurrence is about 6 miles - 91/1. Thus in view of the two statements of the witnesses as well as C.W. I it cannot be said that the victim did not reach the dispensary on the 16th only. 11. The witnesses have admitted that the place of occurrence is about 6 miles - 91/1. k.m. away from the Police Station and the police Station is at a distance of about I, mile away from the dispensary as said by C.W. I. P.W. 4 the son of the victim has said that the victim was unconscious. The first concern of the well-wishers of the victim who is injured and was in unconscious state is to take him to the hospital for medical aid and then rush to the Police Station for lodging the F.I.R. or giving any information to the police. In this case it appears that the victim was taken to the hospital wherefrom O.D. slip was sent which is clear from the statement of C.W.I and the next day the Fardbeyan was recorded. Though the recording of the F.I.R. and information to the police is expected to be at the earliest to avoid any embellishment, improvement, false implication, concoction, after-thought or coloured version, yet if the delay is satisfactorily explained then it has got no effect. 12. In the case of Thulia Kali V/s. State of Tamil Nadu the Supreme Court observed : "Delay in lodging the First Information Report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity, danger creeps into the introduction of coloured Version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the First Information Report should be satisfactorily explained..." Similarly in the case of Apren Joseph V/s. State of Kerala the Supreme Court observed :- "Mere delay in lodging the First Information Report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case." In the case of Krishna Pillai Sree Kumar & anr. The effect of delay in doing so in the light of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case." In the case of Krishna Pillai Sree Kumar & anr. V/s. State of Kerala the Supreme Court observed:- "The F.I.R. was made next morning to the police when it arrived at the hospital while deceased was still alive but fighting a losing battle. The criticism that the report was delayed by 12 hours does not detract from the corroborated value of the F.I.R. in the circumstances then prevailing. Vijayan (P.W.2) and his friends must have been under shock for quite some time after the occurrence and then, as already stated, their chief concern must have been to save the life of the victim. It would not be surprising, therefore, that none of them cared to go to the Police Station and report the matter for legal action against the culprits. " The First lnformation Report, in this view of the matter, was made as promptly as it could be expected and furnishes on that account good corroboration of the testimony of its author Kuttan Pillai (P.W. 1). Thus it cannot be said that the Fardbeyan and the report thereafter is delayed. 13. The next contention of the learned Counsel for the appellants is that two dying declarations-one the Fardbeyan and the other recorded by the B.D.O. are not reliable. As regard) the first one which was the Fardbeyan recorded by C. W. 1, it appears that C. W.l admits that the Fardbeyan had been recorded on 17-10-1978 at 4.30 p.m. at the Surajgarh dispensary. There is nothing to show that it was not recorded and it has also come in evidence that the vietim was taken to the Munger Hospital and thereafter he died on 18-10-78. In his Fardbeyan be has given out the cause of his death. In the case of Munnu Raja & anr. V/s. State of Madhya Pradesh there were three dying declarations by the deceased, which were corroborated by the evidence of two eye-witnesses. The second dying declaration (Ext. 14) was the First Information Report which was lodged by the deceased himself at the Police Station. In the case of Munnu Raja & anr. V/s. State of Madhya Pradesh there were three dying declarations by the deceased, which were corroborated by the evidence of two eye-witnesses. The second dying declaration (Ext. 14) was the First Information Report which was lodged by the deceased himself at the Police Station. The Supreme Court held at page 2201 (Para 5) "After making the- statement before the police, Bahadur Singh succumbed to his injuries and therefore, the statement can be treated as a dying declaration and is admissible under Sec. 32 (1) Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death". Further at page 220 (para 9) it was observed :- "The statement Ex. P.14 was made by Bahadur Singh at the Police Station by way of a First Information Report. It is after the information was recorded, and indeed because of it, that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House Officer who recorded the statement did not possess the capacity of an Investigating Officer at the time when he recorded the statement. In the case of State of Punjab V/s. Amarjit Singh their Lordships of the Supreme Court before referring to the decision of Munnu Raja (supra) held at para 2017 (para 23) :- "As to the legality of the dying declaration, this case is on a better footing. It was recorded before investigation commenced. Even the F.I.R. was issued later. The ASI did not record the dying declaration in the capacity of an Investigating officer. A dying declaration recorded under similar circumstances has been accepted by this court in Munnu Raja V/s. State of Madhya Pradesh (supra)......" In the instant case the Fardbeyan was recorded by the ASI (C.W. 1) which was converted into First Information Report. The C.W. 1 had not become the investigating officer before the recording of the Fardbeyan in the hospital. As such the Fardbeyan is the dying declaration in the eye of law. 14. Further it appears that after the condition of the victim deteriorated the information was sent to the B.D.O for recording the dying declaration of the victim. The B.D.O. had come and thereafter his statement was recorded as has been said by C.W. 1. The B.D.O. has not been examined. C.W.1. 14. Further it appears that after the condition of the victim deteriorated the information was sent to the B.D.O for recording the dying declaration of the victim. The B.D.O. had come and thereafter his statement was recorded as has been said by C.W. 1. The B.D.O. has not been examined. C.W.1. has said that the Doctor had told him that the condition of the victim was deteriorating and so the B.D.O. had come and had written dying declaration before him. Although he (C.W. 1) had not signed it and none else had signed it as a witness and that he was standing when the dying declaration was being recorded and he could not hear the contents of it. C.W. 1 cannot say as to what was written but he says it was written by the B.D.O. This recording of the dying declaration by the B.D.O. has been challenged and attacked by the learned Counsel for the appellants on the ground that B.D.O. has not been examined, that there is no attesting witness, there is no certificate from the Doctor that the victim was in a fit condition to make the statement and also that the dying declaration is not in questions and answers form. 15. As will appear from the various pronouncements of the apex Court, the dying declaration is admissible under Sec. 32 of the Evidence Act. But it is not a statement on oath and the truth or otherwise of the same cannot be decided by the touch stone of cross- examination, so court has to scrutinise the same with caution and strictness, though it is statement of a person who is on the verge of saying good-bye to this world. The court is to see as to whether it was on the basis of tutoring, prompting, temptation, concoction or imagination and if the court left satisfied that it was a case when the maker of the statement was in a fit condition to make the statement and that there was no influence at all upon the maker of the same, then the said statement is to be considered by the court and it can form the basis of a conviction, specially when the oral and other evidence confirms or supports the same. Although the law does not require corroboration of the same but the prudence requires this scrutiny of the same and support of it also. 16. Although the law does not require corroboration of the same but the prudence requires this scrutiny of the same and support of it also. 16. In the case of State of Assam V/s. Mafizuddi Ahmed at page 276 the Supreme Court referred to the following observations in the decision of Khushal Rao V/s. State of Bombay ".... In our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction...... In Lallubhai Devechand Shah V/s. State of Gujarat dealing with a dying declaration this Court laid down (para 9) :- The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinised 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 Court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely." Then their Lordships observed in para 10 [State of Assam V/s. Mafizuddin Ahmed (supra)]- "Thus the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner." In the case of State of Uttar Pradesh V/s. Ram Sagar Yadav the Supreme court observed at page 419 (para 13) :- "It is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration. See Khushal Rao V/s. State of Bombay, AIR 1958 SC 22 , Harbans Singh V/s. State of Punjab, 1962 Supp1 SCR 104, Gopal Singh V/s. State of M.P., 1972 3 SCC 268 . There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear of convincing that the Court may, for its assurance, look for corroboration to the dying declaration." 17. Here in this case, no doubt there is no certificate from the Doctor that the victim was in a fit condition and that the dying declaration is not in the question and answer form and even the person who recorded the Fardbeyan has not been examined and even the signature of the victim on the Fardbeyan has not been proved by the evidence, but the court witness No. 1 who had recorded the Fardbeyan of the victim has clearly stated that it was recorded by the B.D.O. in his presence, though he was standing away and could not hear the contents thereof. He also says that it was the same dying declaration which was recorded by the BDO. Then in such a situation it is not to be discarded when the statement is said to have been made by the victim. 18. Looking to both the dying declarations it appears that there is no contradiction in between the two. Though the investigating officers are said to be keenly interested in the success of the prosecution case, but for that reason alone the dying declaration cannot be brushed aside specially when there is no motive of any kind of ill feeling to C. W. I against the accused. The police officer has not appeared as a prosecution witness but as a witness summoned by the court. Further it appears that even at the time of recording the statement there was no body to coerce or coax or influence the maker of dying declaration. Further it has to be seen that whatever has been stated by the victim in the dying declaration is further corroborated by the statement of the witnesses examined in court. Thus the two dying declarations cannot be ignored and they are to be relied on and can be considered along with the other evidence. 19. Further it has to be seen that whatever has been stated by the victim in the dying declaration is further corroborated by the statement of the witnesses examined in court. Thus the two dying declarations cannot be ignored and they are to be relied on and can be considered along with the other evidence. 19. As regards the witnesses two of them have been mentioned in the First Information Report and two are non-First Information Report witnesses. Prasadi Lal (P.W. 2) a First Information Report witness has said that the occurrence took place at 7 a.m. and that the appellants came to the place of victim and said that the victim and his brother Dhuri Singh had eaten away the goat of the appellants and that appellant No. I wanted goat for goat. After altercation both the appellants went away from the house of the victim and then came to Bathan of the victim. This witness has also gone to his Chilly field for working. The victim was tieing his buffalo at his Bathan and then appellant No. I Dhobi Yadav gave a lathi blow on the stomach, ribs and shoulder of the victim who fell down and then appellant No.2 Suresh Yadav sat on the chest of the victim and started scuffling and thereafter took out money from the waist of the victim and then both the accused went away with bucket and Lota from the spot. The chilly field was at a distance of about one Rassi. After the occurrence the victim was taken by the son (P.W. 4), Bhagwat Singh and Dhuri Singh both not examined. This occurrence is said to have been seen by himself and P.Ws. 3 and 5. 20. The evidence of this witness has been challenged on the ground that he has made embellishment and improvement as he has said that he does not remember if he had told the police about altercation about goat, that Hurrah blow was given on the shoulder, stomach and planks of the victim, that the appellant No.2 sat on the chest of the victim and lastly that Lota has been taken away. C.W. 1 has said that P.W.2 has not said all these matters to him. Utmost this part of the statement can be brushed aside but the fact remains that he has said about the occurrence and assault by the accused persons. C.W. 1 has said that P.W.2 has not said all these matters to him. Utmost this part of the statement can be brushed aside but the fact remains that he has said about the occurrence and assault by the accused persons. So this witness can be relied on. 21. Mithoo Mochi (P.W. 5) another F.I.R. witness has also deposed about the occurrence saying that he was returning to his village and the victim was tieing his buffalo at the Bans Bhatti of Nandini Singh and then accused came and Dhobi Yadav assaulted the victim with Hurrah of his Paina and appellant No.2 Suresh Yadav sat on the chest of the victim. This witness was declared hostile by the prosecution as he has said that he could have recognised Suresh Yadav if he was present. In respect of this hostile witness learned Counsel for the appellants argued that his statement as a whole is not to be discarded and is to be taken into consideration which goes against the prosecution. As to this contention a witness declared hostile by the prosecution does not become the witness of the prosecution, yet his evidence is not to be discarded. In the case of Jagir Singh V/s. The State (Delhi Admn)10 the Supreme Court observed:- "It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his part of his testimony.... In the case of Keshoram Bora V/s. State of Assam the Supreme Court observed:- "While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, it is equally well settled that when once a prosecution witness is declared hostile the prosecution clearly exhibits its intention not to rely on the evidence of such a witness...." 22. In the case of Bhagwan Singh V/s. State of Supreme Haryana the Court observed :- "But the fact that the court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. In the case of Bhagwan Singh V/s. State of Supreme Haryana the Court observed :- "But the fact that the court gave permission to the Prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In the case of Sat Paul V/s. Delhi Administration the Supreme Court observed :- "From the above conspectus, it emerges, clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, the part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited. the Judge should, as matter of prudence, discard his evidence in toto." In the case of Syed Akbar V/s. State of Karnataka following the case of Sat Paul (supra) the Supreme Court observed :- "That the evidence of the prosecution witness cannot be rejected wholesole merely on the ground that the prosecution has dubbed him hostile and has cross-examined him." In the case of Sk. Zakir V/s. State of Bihar the Supreme Court observed :- "It is quite strange that some witnesses do turn hostile but that by itself would not prevent the court form finding the accused guilty if there is otherwise acceptable evidence in support of the prosecution. Zakir V/s. State of Bihar the Supreme Court observed :- "It is quite strange that some witnesses do turn hostile but that by itself would not prevent the court form finding the accused guilty if there is otherwise acceptable evidence in support of the prosecution. " In the case of State of U.P. V/s. Brahma Das the Supreme Court observed :- "The High Court overlooked that he had been declared hostile only in the aforesaid context and that his evidence supported the prosecution version that the murderous assault took place at the aforesaid time and place as deposed by the other witnesses when he, in his official capacity, was engaged in taking the measurements. In doing so the High Court disregarded the settled position of law as reflected in numerous decisions of this court to the effect that such part of the testimony of a hostile witness as inspires confidence can be accepted by the Court (See Bhagwan Singh V/s. State (supra), Sat Paul V/s. Delhi Administration (supra), Syed Akbar V/s. State of Karnataka, (supra) Upendra Mahakud V/s. State, 1985 Crl. L.J. 1767 (Orissa). The fact, however, remains that even this witness who has in a way evinced sympathy for the accused by stating that he had not been able to identify the culprits has deposed that the incident has occurred when he was so engaged in taking the land measurements. Leaving aside the question of identity of the assailants, his evidence clearly corroborated the testimony of the prosecution witnesses as to the time, place and manner of the occurrence..... " Thus the statement of P.W. 5 cannot be brushed aside so far as, the time, place and manner of occurrence given out by him which is also corroborated by the other evidence produced by the prosecution in that behalf. 23. Besides these two F.I.R. witnesses there are two non-F.I.R. witnesses namely Sheodani (P.W.3) and Sia Sharan (P.W.4). P.W.3 has said that he was going to the line hotel from his house and he saw at the Bathan that appellant No. 1 gave a Hurrah blow on the back, chest and stomach of the victim who fell down and then appellant No.2 sat on the chest and began to scuffle and then took away money from the waist of the victim. He (appellant No.2) also ran away with the full Bucket of milk and a Lota. He (appellant No.2) also ran away with the full Bucket of milk and a Lota. The appellants were mentioning about the goat that the victim and his brother Bhagwat Singh had eaten away. This witness has said that now Bhagwat Singh is dead. His evidence has also been tried to be assailed on the ground that the court witness said that his witness did not say to him as he has stated in court that he did not remember if he had told the S.I. that the victim was hit by Lathi and by putting the Lathi on his chest the accused pushed it. P.W. 4 is also another non FIR witness. He is the so of the deceased. He says that on the date of occurrence the victim was tieing the buffalo at his Barhan and the accused came and began to assault the victim saying that the victim has eaten away his. goat and then appellant No.1 assaulted the victim with Lathi and appellant No.2 took away the money. He says that he had taken the victim to the hospital. He (victim) was unconscious on the date of occurrence and thereafter he became conscious on the next day for few hours and then again became unconscious and that on 17-10-1978 he had gone to the Police Station at 10 a.m. and had given out the statement to the police about the assault and the 10 had recorded his statement. He says that I.O. had recorded the statement" of his father at the hospital and he has also said the the (P.W.4) has taken the victim to Munger hospital. 24. Learned Counsel for the appellants has urged that a witness not mentioned in the First Information Report is not to be considered. But this contention of the learned Counsel cannot be accepted. In the case of Narpal Singh V/s. State of Haryana the Supreme Court obseved ; "Secondly the mere fact that his name was not given in the F.I.R. though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. But this contention of the learned Counsel cannot be accepted. In the case of Narpal Singh V/s. State of Haryana the Supreme Court obseved ; "Secondly the mere fact that his name was not given in the F.I.R. though of some relevance, would not be sufficient by itself to entail rejection of the testimony of this witness. We must realise that five persons has been killed and the informant Sadhu Ram must have been stunned and stupefied at the ghastly murders that took place in the presence and had picked up sufficient courage to run to the Police Station to lodge the F.I.R. It may be that in view of that agitated mental condition he may have omitted to mention the name of Rattan Singh. The mere fact that Rattan Singh s/o Shri Ram is mentioned in the F.I.R. does not establish that Rattan Singh P.W.22 could not have seen the occurrence. It is possible that both these persons may have witnessed the occurrence and the informant mentioned the name of one and not the other...." In the case of State of UP. V/s. Lalla Singh the Supreme Court held : "These two witnesses are not mentioned in the First Information Report but from their testimony it is clear that they are natural witnesses to the occurrence and there are no grounds for disbelieving their testimony........ It is not necessary that the names of all the eye-witnesses should be mentioned in the F.I.R The mere non-mention of the names of the eyewitnesses will not justify the rejection of the evidence of the eye witnesses." 25. In the present case the Fardbeyn has been given by the victim himself who was injured and has regained consciousness. The possibility of the omission of the name of the son might have been there as the informant must have been under the impression that the son is present there and if he omitted to mention the name of his son, it was accidental. Thus the statement of these two witnesses not mentioned in the First Information Report can not be ignored. On consideration of the evidence of the four witnesses coupled with the two dying declarations mentioned above, it is apparent that victim was assaulted by appellant No.1 by hurrah and some money has been taken out from the waist of the deceased by appellant No.2. 26. On consideration of the evidence of the four witnesses coupled with the two dying declarations mentioned above, it is apparent that victim was assaulted by appellant No.1 by hurrah and some money has been taken out from the waist of the deceased by appellant No.2. 26. Learned Counsel for the appellants has urged that in this case post mortem report has not been proved in accordance with law and in absence of any proof thereof it cannot be, said whether death has taken place on account of the injuries or otherwise. As to this contention the post mortem report has been brought on the record through the statement of Subhash Chandra Prasad. (P.W.7) who has proved the same and he has said that post mortem examination was conducted by the Doctor. But the Doctor has not been examined. No doubt as an expert to the cause of death the evidence of the Doctor who conducted post mortem examination over the dead body and observed the injuries, is very vital and important. At the time of conducting the post mortem examination the Doctor prepares his notes and thereafter gives his report which is known as post mortem report. But that report itself is not admissible unless the Doctor is examined and subjected to scrutiny and cross-examination, and if his opinion and observations contained in his statement are supported then the report can be looked into. So the examination of the Doctor is essential. 27. The courts in India have been holding so from time to time. In a division Bench case of Bhupat Kumar V/s. State this court held : "The notes of the post mortem would be admissible when the Doctor holding post mortem was examined. If the post mortem report is removed form consideration then there will be some difficulty in detaining the cause of death of the deceased So far as the injuries to the injured are concerned, the medical evidence merely corroborates the statements of the prosecution witnesses to the occurrence. The medical evidence of course would show the nature of the injury which sometimes may be apparent even to a lay man, but so far as the cause of death is concerned, it is primarly the medical evidence which proves it. The medical evidence of course would show the nature of the injury which sometimes may be apparent even to a lay man, but so far as the cause of death is concerned, it is primarly the medical evidence which proves it. It is true that an inference may be drawn from the fact that the victim died soon after the assault was made on him, that most probably he died as a result of the injuries sustained by him in the assault. This, however, could not be enough to sustain a conviction under Sec. 302 of the Indian Penal Code. the Doctor could have stated that one or more injuries were such which could have resulted in the death of Soda Mahton in ordinary course. The medical evidence could also have shown that the injuries inflicted on the victim were such which the assailants must have known that they were likely to result in the death of the victim. In absence of any such evidence, it may be difficult to hold that the assailants intended to cause the death of the victim or that they knew that death was the most likely result of the assault committed by them. A division Bench of Delhi High Court in the case of State V/s. Gyan Singh, held:- "The opinion of the medical officer contained in the post mortem report is only to aid the investigating officer in the investigation. The report cannot be held to be a record of medical officer of his official act for the use of the public. It is well settled that the post mortem report and injury report is not substantive evidence. It has to be proved by the maker of it. It cannot, therefore, be termed as a public document as envisaged under Sec. 74 of the Evidence Act." Further in the case of Bhanda Garh V/s. State of Assam a Division Bench of that Court observed : "We are also of the opinion that the injury report Ext. 5 cannot be admitted in evidence and relied on by the prosecution because the Doctor who examined the appellant was not put in the witness box. Unlike, in the case of Serologist, examination of a medical witness, except in a case covered by Sec. 291 of Criminal Procedure Code is not dispensed with by law. 5 cannot be admitted in evidence and relied on by the prosecution because the Doctor who examined the appellant was not put in the witness box. Unlike, in the case of Serologist, examination of a medical witness, except in a case covered by Sec. 291 of Criminal Procedure Code is not dispensed with by law. As an expert his evidence is relevant under Sec. 45 of Evidence Act. But by virtue of Sec. 4 he is required to state his opinion as a witness in the court. It is true that in his statement under Sec. 313 of the Criminal Procedure Code the appellant gave a story that be was assaulted by the deceased with Lathi, but in the absence of proof of the injury, it cannot he said that these could be connected to the statement of the appellant." A Division Bench of Calcutta High Court in the case of Gofur Sheikh V/s. State observed: "Normally the post mortem report is used by the doctor, who conducted the post mortem examination for the purpose of refreshing his memory as permitted by law while giving substantive evidence in Court. No evidence has been led in this case to show that the post mortem report was being tendered in evidence under any of the relevant provisions of Chapter II of the Evidence Act. In our view, the learned Judge has erred in law in treating the post mortem report as substantive evidence in this case without any foundation having been led for the applicability of any relevant provisions of Chapter II of the Evidence Act." In the case of Ramdeo Yadav & ors. V/s. State of Bihar a learned Single Judge of this Court observed : "Evidently the doctor had seen the injuries and, so, the evidence should have been given by the doctor himself as to what he had seen and found. Sec. 294 of the Code of Criminal Procedure has been provided in the Code for obviating the difficulty of formal proof of certain document and not for providing a substitute for direct evidence of witnesses like the doctor. This section simply says that where the genuineness of a document is not disputed it may be read in evidence in any inquiry or trial. This section simply says that where the genuineness of a document is not disputed it may be read in evidence in any inquiry or trial. It is significant that Sec. 294 of the Criminal Procedure Code does not refer to a document, which even if exhibited, cannot be read as a piece of evidence. The injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is the evidence of the doctor on oath in regard to the injuries which alone is substantive evidence. The injury report can only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of the doctor. Of course, Sec. 32 of the Evidence Act provides an exception to this general principle but evidently the present case does not come, within any of the clauses of Sec. 32 of the Evidence Act. That being so; the injury reports of the witnesses as also of accused Dukhi Yadav referred to by the learned Trial Court in its judgment have to be excluded from consideration. But, even if these injury reports are excluded from the evidence, there remains sufficient material on the record to prove in general way the fact that these witnesses bas sustained injuries in course of the Occurrence. Indeed, their own evidence in also there on this point. Then there is also the evidence of the investigation officer who had found injuries on their persons and had referred them to the doctor for medical examination, Of course, these materials cannot be enough to prove the specific injuries said to have been sustained by them but, they are sufficient to establish the broad fact that they had sustained some injuries in course of dacoity." 28. In the present case, as mentioned above, the injury report has been brought on the record through the statement of P.W. 7. He is not the person before whom the post mortem examination has been conducted or the notings have been done. He has simply brought the post mortem report on the records. The prosecution has not taken resort to the provisions of Sec. 294 of the Civil Procedure Code. Eye-witnesses said that the victim received the injuries. C.W. 1 says that he had received on O.D. slip on 17-10-1978 from the hospital where he met the injured Ganga Singh and recorded his Fardbeyan. The prosecution has not taken resort to the provisions of Sec. 294 of the Civil Procedure Code. Eye-witnesses said that the victim received the injuries. C.W. 1 says that he had received on O.D. slip on 17-10-1978 from the hospital where he met the injured Ganga Singh and recorded his Fardbeyan. He further says that the condition of the victim was serious and so he asked the B.D.O. to record the dying declaration of the victim. He (C.W.1) had examined the body of the victim. All these show that the victim was assaulted, the Ext.5 which has been brought on the record as post mortem report appears to have been done by Dr. Gupta whose writing has been proved by P.W.7. Thus it appears that the post mortem has been done and even if the Doctor has not been examined this much can be inferred that the post mortem of the victim has been done and he has received the injuries. The oral evidence is that the victim has received the injuries and thereafter he died. Inspite of all this it cannot be said that what was the cause of death of the victim. So in these circumstances post mortem report cannot be accepted in absence of the examination of the doctor. But only this much is established that the victim was assaulted by the accused persons and the victim received the injuries. And so the contention of the learned Counsel for the appellants that the case under Sec. 302 of the Indian Penal Code against appellant is not made out may be accepted. 29. Yet the accused cannot escape the offence of causing injuries to the victim and stealing money from his (victim) waist and Lota and a bucket, which may bring them under the clutches of Secs. 323 and 379 of the Indian Penal Code. Appellant No.1 has given a Hurrah injury to the victim while appellant No. 2 is said to have hit on the chest of the victim and thereafter took out the money from his waist and took away a Balti and Lota. 30. 323 and 379 of the Indian Penal Code. Appellant No.1 has given a Hurrah injury to the victim while appellant No. 2 is said to have hit on the chest of the victim and thereafter took out the money from his waist and took away a Balti and Lota. 30. In the above circumstances the conviction of appellant No.1 Dhobi Yadav is altered from Section 304 Part II of the Indian Penal Code to Sec. 323 of the Indian Penal Code and that of appellant No. 2 Suresh Yadav under Sec. 304 Part II/34 of the Indian Penal Code is set aside, but his conviction for the offence under Sec. 379 of Indian Penal Code is upheld. It appears that appellant Dhobi Yadav had surrendered on 27-11-1978 while appellant Suresh Yadav surrendered on 30-10-78. Both were granted bail by the learned Sessions Judge on 6-1-79. The judgment was delivered by the learned Sessions Judge on 28-11-84 when they were taken into custody. Thereafter they were granted bail by this court on 12-12-1984 and were released on bail on 17-12-84. In this way the appellant No.1 has been in jail for about 65 days in all, while appellant No.2 for about 89 days. Further it appears that they are facing the rigors of criminal prosecution for the last over 10 years. 31. It is true that appellants had been charged and convicted for an offence under Sec. 304, Part II and given four years rigorous imprisonment and their fate had been hanging in suspense for a long time and as a consequence thereof they had undergone mental agony and torture of prolonged prosecution for over ten years, yet showing of-under-Sympathy and considerations by allowing them to go out on the period already undergone in such a case where a man has lost his life, though on account of post mortem report not being proved by a doctor, not produced by the prosecution for reasons best known to it, would read to miscarriage of justice and also undermining the confidence of the public in the judicial system. So it will be interest of justice that resort may be had to the provisions of law as contained in Sec. 357 of the Criminal Procedure Code which provides for compensation to the victim of offence. So it will be interest of justice that resort may be had to the provisions of law as contained in Sec. 357 of the Criminal Procedure Code which provides for compensation to the victim of offence. In the case of Hari Kishan & State of Haryana V/s. Sukhbir Singh & ors.24 the Supreme Court observed at page 2131 (paras 10 & 11) "It is an important provision but Courts have seldom invoked it, perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused It may be noted that this power of Court to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way." "The payment by way of compensation must, however, be reasonable, may depend upon the facts circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The Court may enforce the order by imposing sentence in default. " 32. Both the appellants, as found above, have undergone sentences of 65 and 89 days respectively, so these sentences already suffered besides a fine of Rs. 500.00 on each of the appellants are deemed sufficient punishment. This amount of fine is directed to be piad by the appellants within a period of four months from to day. " 32. Both the appellants, as found above, have undergone sentences of 65 and 89 days respectively, so these sentences already suffered besides a fine of Rs. 500.00 on each of the appellants are deemed sufficient punishment. This amount of fine is directed to be piad by the appellants within a period of four months from to day. In case of default of payment of fine within four months from today, they shall be taken into custody to serve out 4 months rigorous imprisonment. In case the amount of fine of Rs. 500.00 by each of the appellants total being Rs. 1000.00 is realised then this amount of fine shall be paid as compensation of Sia Sham (P.W. 4), son of the deceased, within two months of the deposit of the same in the Trial Court.