Judgment 1. Both these appeals have been filed against the judgment and order of conviction and sentence dated 21-3-1990 passed by Sessions Judge, Saharsa in Sessions Trial No. 85/86. In both the appeals the appellants have been convicted for the offence under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution is that oa 20-11-1985 at about 9.25 p. m. the informent Jai Prakash Sinha (PW 1) gave his Fardbeyan (Ext. 1) in the hospital, Saharsa stating inter alia therein that while he along with the deceased Amit Kumar Mitra was standing near the Gate of Ramesh Jha Mahila College, Saharsa after witnessing picture, the appellant came and called Amit Kumar Mitra saying that they had some work with him. Amit Kumar Mitra and the appellants started talking among themselves at some distance. The deceased Amit Kumar Mitra told the informant to come after changing his dress as they had to get photographed and they proceeded towards Sanjay park. When the informant returned back after changing his dress, he did not find Amit Kumar Mitra and the appellants. In the meantime, Manoj Kumar Verma, PW 4 met him and then they proceeded towards Sanjay park in search of his friend Amit Kumar Mitra. He found the appellant Arjun Rajak having dagger in his hand and appellant Bindi Pasi running away towards west in the moonlit night. He also heard some groaning sound coming from near a tree. He went there and saw his friend Amit Kumar Mitra lying in a pool of blood and several injuries on his person. In the meantime Manoj Kumar Verma PW 4 also reached there, on enquiry Amit Kumar Mitra told that the appellant Bindi Pasi caught hold of him and pressed his mouth and neck and the appellant Arjun Rajak gave several dagger blow on his person. He and Manoj Kumar Verma took the injured Amit Kumar Mitra to the hospital on a rikshaw. In the Fardbeyan it has been alleged that Bindi Pasi was inimical to Ashok Mitra elder brother of Amit Kumar Mitra due to which this occurrance took place. 3. On the aforesaid Fardbeyan, a formal FIR (Ext. 7) was registered for the offence under Sections 307 and 324 of the Indian Penal Code and the investigation of the case was taken up. 3. On the aforesaid Fardbeyan, a formal FIR (Ext. 7) was registered for the offence under Sections 307 and 324 of the Indian Penal Code and the investigation of the case was taken up. During the investigation, dying declaration (Ext. 2) of Amit Kumar Mitra was recorded by a Judicial Magistrate (PW 2) and after the death of Amit Kumar Mitra the case was converted into one under Section 302 of the Indian Penal Code. The Investigating Officer (PW 10) after completion of the investigation submitted charge sheet for the offence under Section 302 of the Indian Penal Code against the appellants. After submission of charge-sheet, cognizance was taken and the case was committed to the Court of Sessions for trial. 4. The defence of the appellants was that they are innocent and have been falsely implicated in this case. Their further defence was that the deceased Amit Kumar Mitra had some love affairs and illicit relation with one Munni Kumari of Naya Bazar within the Saharsa town. On the day of occurrence, the deceased had gone to the house of Munni Kumari and he was caught in cympromising position with her and her femily members assaulted the deceased and threw his deadbody. Munni Kumari also out of shock set fire to her body on the same day. Subsequently, the family members of Munni Kumari and the deceased in collusion got the case instituted against the appellants. 5. The prosecution in support of its case examined ten witnesses, out of whom PW 8 and PW 9 have been tendered. PW 10 is the Investigating Officer. PW 2 is a Judicial Magistrate, who recorded the dying declaration (Ext. 2). PW 3 is the doctor, who held post-mortem over the deadbody. PW 5 is also a doctor, in whose presence the dying declaration was recorded and who made endorsement on the dying declaration. PW 6 and PW 7 are brothers of the diceased. They have deposed that the deceased disclosed the name of the appellants as his assailants. PW 1 is the informant, who had given detailed narration of the incident, PW 4 is a witness in whose presence the deceased disclosed the name of the assailants on the pot. One court witness Ashutosh Singh was also produced but neither the prosecution nor the defeace put any question to him. 6. PW 1 is the informant, who had given detailed narration of the incident, PW 4 is a witness in whose presence the deceased disclosed the name of the assailants on the pot. One court witness Ashutosh Singh was also produced but neither the prosecution nor the defeace put any question to him. 6. Similarly the defence has also examined six witnesses in support of its case, out of whom DW 1, DW 3 and DW 5 are formal witnesses. DW 2 had given description of the house of Munni Kumari, daughtes of Rewati Raman. DW 4 deposed that he had seen the deceased going towards the courtyard of Rewati Raman about 2 1/2 years ago without mentioning the date. DW 6 deposed that there was dispute between the family members of the deceased and the appellant Arjun Rajak. 7. At the very outset, it is pertinent to mention herein the occurrence had taken place on 20-11-1985 at about 6.00 p. m. in which the deceased was assaulted with the dagger. Subsequently, the deceased died on 21-11-1985 at about 4.20 a. m. The witnesses of the prosecution have also supported the fact that the deceased died at 4.20 a. m. on 21-11-1985 due to injuries caused on his person. The doctor,, who held post-mortem over the deadbody also found ante-mortem injuries on the person of the deceased. In the Bed Head Ticket (Ext. 14) it has been mentioned specifically that the injured died at about 4.20 a. m. on 21-11-1985. Thus the factum of death is proved beyond all reasonable doubt, besides the death has not been challenged by the defence. 8. Now the question arises for determination as to whether the prosecution has succeeded in proving its case against the appellants. In this regard PW 1 the informant has given detail narration of the incident He has stated in his evidence that after witnessing picture when he reached near the Gate of Ramesh Jha Mahila College , the appellants Bindi Pasi and Arjun Rajak came there and called Amit Kumar Mitra saying that they had some work with him. They started talking at some distance and in the meanwile his friend Amit Kumar Mitra asked the informant to come after changing his dress as they had to get snapped. He also said that they were going towards Sanjay park. They started talking at some distance and in the meanwile his friend Amit Kumar Mitra asked the informant to come after changing his dress as they had to get snapped. He also said that they were going towards Sanjay park. When the informant returned back after changing his dress, he did not find the deceased Amit Kumar Mitra and the appellants. In the meantime, Manoj Kumar Verma PW 4 came there and they proceeded towards Sanjay park in search of his friend Amit Kumar Mitra. When they came near the P.W.D. Inspection Bungalow, he found the accused Arjun Rajak with a dagger in his hand and Bindi Pasi with clothe running away towards west in the moonlit night. He also heard some groaning sound coming from near a tree and then they proceeded towards the tree and found that Amit Kumar Mitra was lying in a pool of blood having several injuries on his person. In the meantime, Manoj Kumar Verma PW 4 also came there and on enquiry the deceased told that the appellant Bindi Pasi caught hold of him and pressed his neck and mouth and the appellant Arjun Rajak gave several dagger below on his person PW 1 also deposed that he and PW 4 took Amit Kumar Mitra to Sadar Hospital, Saharsa and he sent PW 4 to inform his family members. In his deposition he also stated that Amit Kumar Mitra also disclosed the name of appellants to his brothers and father. He also accompanied the Investigating Officer to the place of occurrence where the Investigating Officer PW 10 seized woolen pullover and Maflar from the place of occurrence and he also seized blood stained earth from the place of occurrence and prepared seizure list (Ext. 5). PW 4 supported the case of the prosscution and corroborated the evidence of PW 1 in his evidence. He has stated that on 20-11-1985 at about 6.15 p. m. he met Jai Prakash Sinha PW 1 near Kunwar Singh Chowk and thereafter they proceeded towards Sanjay park in search of Amit Kumar Mitra. He saw two persons, one having dagger in his hand and the other having clothe in his hand running away in the moonlit night but he could not identify those persons. He saw two persons, one having dagger in his hand and the other having clothe in his hand running away in the moonlit night but he could not identify those persons. He further stated in his evidence that the deceased Amit Kumar Mitra disclosed the name of the appellant Bindi Pasi as having caught hold of him and having pressed his neck and mouth and appellant Arjun having given several dagger blow on his person. He had also seen pullover and Maflar at the place of occurrence. Both the witnesses were cross examined at length but we do not find any inffirmity to discredit their evidence. 9. Besides the evidence to the aforesaid witnesses, there is also dying declaration (Ext. 2) on the record. The dying declaration was recorded by PW 2 in the hospital at about 10.10 p. m. Ext. 2 was endorsed by the doctor PW 5. The endorsement has been marked as Ext. 2/1. The deceased himself put his signature on Ext 2 and his signature has been marked as Ext 8/2. In the dying declaration he disclosed that the appellant Bindi Pasi pressed his neck and mouth and the appellant Arjun Rajak gave him several dagger blow on his person. PW 2 in his evidence has stated that the deceased was in fit mental condition to give his statement. This has been corroborated by the doctor. PW 5, in whose presence the dying declaration was recorded. He has stated in his evidence that the deceased was in fit mental condition to give his statement. However, learned counsel for the appellants contended that the dying declaration cannot be relied upon and pointed out that undisputedly the Fardbey an was recorded on 20-11-1985 at about 9.25 p.m. and the dying declaration was recorded at 10.10 p. m. on the same night. Learned counsel also says that at the time of recording Fardbeyan (Ext-1) undisputedly the injured was not in a fit mental condition to give his statement and within such a short time i.e. after about 45 minutes he could not be in a position to give his statement and thus the dying declaration cannot be relied upon. In this regard PW 6 has deposed that at the time of recording Fardbeyan (Ext. 1) the doctor said that the patient had been given injection and he would regain his senses after some time. In this regard PW 6 has deposed that at the time of recording Fardbeyan (Ext. 1) the doctor said that the patient had been given injection and he would regain his senses after some time. This has been corroborated by PW 10 also in his evidence. PW 10 has stated that the doctor present on duty said that the injection has been given just now and after regaining his senses the injured will speak. Besides, the dying declaration (Ext 2) is not the only material on the record prior to recording declaration the deceased disclosed the name of the appellants as his assailants at the place of occurrence in presence of PW 1 and PW 4. They have deposed that in their presence the deceased disclosed that the appellant Bindi Pasi pressed his neck and mouth and appellant Arjun Rajak assaulted him with dagger. That apart, PW 6 and PW 7 the brothers of the deceased have deposed in the court that prior to recording of the Fardbeyan (Ext. 1) the deceased disclosed the name of the appellant as his assailants and had stated that the appellant Bindi Pasi pressed his neck and mouth and the appellant Arjun Rajak gave dagger blow on his person. Thus it, is obvious from the evidence on the record that even prior to recording the Fardbeyan (Ext. 1) and dying declaration (Ext. 2) the deceased disclosed the name of the appellants as his assailants. It is true that the dying declaration alone is not sufficient for passing the order of conviction in such a circumstance but in the instant case the dying declaration is also corroborated by the evidence of the other prosecution witnesses as stated above. The evidence of the proscuition witnesses are consistant on the aforesaid point. The defence counsel also could not be able to point out any discrepancies in their evidence to discredit their testimony. Thus, we are of the view that the submission of the counsel for the appellant cannot be accepted in the facts and circumstances of the case. 10. Learned counsel for the appellants further pointed out that the doctor PW 3, who held post-mortem over the deadbody of the deceased had found injuries, on vital parts such as liver and lungs and after receiving such injuries a man cannot be in a fit mental condition to give his statement. 10. Learned counsel for the appellants further pointed out that the doctor PW 3, who held post-mortem over the deadbody of the deceased had found injuries, on vital parts such as liver and lungs and after receiving such injuries a man cannot be in a fit mental condition to give his statement. In this connection, it is pertinent to mention herein that in the instant case two doctors were examined i. e. PW 3, who held post-mortem over the deadbody and PW 5 in whose presence dying declaration was recorded. They were cross-examined on behalf of the accused persons but there is nothing in their evidence to show that after receiving such injury the injured cannot be in a fit mental condition to give his statement. In case of State of Haryana V/s. Harpal Singh and others reported in AIR 1978 SC 1510 the deceased was shot at and he received injury on his chest and stomach. His dying declaration was recorded by the Sub-Inspector of police in the Hospital and within 45 minutes of recording of dying declaration the injured died. The open court in the aforesaid case held that the fact that the puls was not palpable and blood pressure unrecordable and the patient was in a gasping condition would not necessarily show that the patients condition was such that no dying declaration could be recorded. In the instant case PW 1 and PW 4 have categorically deposed that in their presence the injured disclosed the name of the appellants as his assailants at the spot. PW 6 and PW 7 have also categorically stated in their evidence that the injured disclosed the name of the appellants as his assailants in the hospital. Besides, there is no evidence on the record to show that at the time of recording dying declaration the condition of the injured was such a serious that he could not give his statement. On the other hand, there is evidence of the doctor PW 5 that the injured was in a fit mental condition to give his statement and the injured himself signed the dying declaration which has been marked as Ext. 2/2, In view of such evidence, in our opinion, the contention of the appellants cannot be accepted. 11. On the other hand, there is evidence of the doctor PW 5 that the injured was in a fit mental condition to give his statement and the injured himself signed the dying declaration which has been marked as Ext. 2/2, In view of such evidence, in our opinion, the contention of the appellants cannot be accepted. 11. Learned counsel for the appellants further submitted that there were injuries on the hand and thumb and thus the injured could not have signed his dying declaration. In this connection it is necessary to mention that PW 3 the doctor, who held post-mortem over the deadbody of the deceased had found injuries on the base of the thumb and not on the other partition of the thumb and thus in our view is such a condition is cannot be said that the injured could not put his signature. 12. So far stand of the defence is concerned that no occurrence in the manner as alleged by the prosecution has taken place and the injured was cought hold in the house of Rewati Raman Sinha in compromising condition with his daughter in Naya Bazar and was assaulted there and his deadbody was thrown at the alleged place of occurrence, it is relevant to mention herein that both the appellants have taken a defence that the deceased had some love affairs with Munni Kumari the daughter of Rewati Raman Sinha but nothing cogent has been brought on the record even to suggest that there was any such affairs with the aforesaid Munni Kumari. The defence has also examined six witnesses but not even a single witness has stated with regard to the aforesaid defence that the deceased had any love affairs with the aforesaid Munni Kumari. The place of occurrence where Amit Kumar Mitra was found lying in the pool of blood is at a distance of half kilometer from the house of Rewati Raman Sinha of Naya Bazar. Besides the claim of the defence that the deadbody was thrown at the alleged place of occurrence also does not appeal to reason as Amit Kumar Mitra was tound alive at the place or occurrence. It is true that the injured was found only wearing underwear but as the same time it is pertinent to mention herein that woolen pullover having cut mark and blood stained was found at the place of occurrence. It is true that the injured was found only wearing underwear but as the same time it is pertinent to mention herein that woolen pullover having cut mark and blood stained was found at the place of occurrence. Besides the prosecution witnesses PW 1 and PW 4 have stated in their evidence that they had seen one of the appellants, namely Bindi Pasi running away with clothe. In such a situation, we are of the view that there is no evidence on the record even to suggest that the deceased had any love affairs with Munni Kumari and no occurrence took place as alleged by the prosecution. 13. Learned counsel for the appellants further contended that enmity has been admitted by the prosecution and the appellants have falsely been implicated in this case out of aforesaid enmity. In this regard it is pertinent to mention herein that enmity cuts both way. A person may be implicated out of enmity and a person may commit offence due to aenmity. In the instant case, nothing has been brought on record that the appellante were falsely implicated out of enmity and hence we find no substance in the submission. 14. On consideration of the entire facts and circumstances as stated above we are of the view that the prosecution has succeeded in establishing its case beyond all reasonable doubts. Accordingly, this appeal is dismissed. The judgment and order of conviction is hereby confirmed. The bail bound of Bindi Pasi is also hereby cancelled and the trial court directed to take all steps to apprehend Bindi Pasi to serve the remaining period of sentence.