R. K. DASH, J. ( 1 ) THIS appeal is preferred against the judgement of the learned Sessions Judge, Sundargarh in S. T. No. 35 of 1991 whereby he has convicted these four appellants (hereinafter referred to as 'the accused persons') under section 302/34 IPC and sentenced each of them to suffer imprisonment for life. ( 2 ) THE prosecution case unfurled during trial may shortly be stated thus :raghu Kishan, deceased, Rathi Kisan, PW-4 and Ladra and Lambodar Kishan, deceased were real brothers residing in village Hatibahal under Lahunipade Police Station in the district of Sundargarh. The unfortunate incident which led in the death of the above two deceased happened on 29-8-1990. It is alleged that on that day at about 5. 00 p. m. all the accused persons with a view to taking revenge on PW-4, Rathi Kishan and his brothers, for their playing Sorcery on their ladies and children came to their house being armed with lathis, Gupti, bow and arrows and asked both the deceased as to why they were killing their children and so saying accused Butia Kishan and Kamra Mohanta assaulted them with lathis and accused Mahuri Kishan plunged a Gupti in the waist of Raghu Kishan and on the abdomen of Ladra alias Lambodar Kishan. Due to such assault both the deceased sustained bleeding injuries and intestate of Ladra Kishan came out. After having assaulted both the deceased, the accused persons bolted from the scene whereafter both the deceased started for the police station to inform the incident, but on the way deceased Lambodar Kishan being unable to move further remained in the house of Ugresen Munda. PW-9. The other deceased Raghu Kishan went and informed Samsundar Patra, Grama Rakhi, PW-1 whereupon PW-1 went to the Police Station and lodged report. Since both the deceased were alive, the case was initially registered under Sections 326/34 IPC and investigation commenced. Deceased Raghu Kishan was sent to the Sub-Divisional Hospital, Banei for treatment where the treating physician Dr. Sasanka Kabi Satpathy, PW-8 recorded his dying declaration. Ext. 7. Ultimately both the deceased succumbed to their injuries whereupon the case was converted to one under Section 302 IPC. In course of investigation inquest over the dead body of both the deceased was held and thereafter post-mortem examination was conducted. After usual investigation charge-sheet was laid against all the accused persons to stand their trial. Ext. 7. Ultimately both the deceased succumbed to their injuries whereupon the case was converted to one under Section 302 IPC. In course of investigation inquest over the dead body of both the deceased was held and thereafter post-mortem examination was conducted. After usual investigation charge-sheet was laid against all the accused persons to stand their trial. ( 3 ) THE accused persons denied the prosecution allegations and pleaded that they had been falsely implicated. ( 4 ) DURING trial prosecution examined as many as 14 witnesses including doctors who held post-mortem examination and the learned trial Court on an appraisal of the ocular accounts of the witnesses coupled with the dying declaration of deceased Raghu Kishan convicted the accused persons under Section 302/34 IPC and sentenced them as here in before stated. ( 5 ) DR. Susil Kumar Parida, PW-6 performed autopsy on the dead body of deceased Ladra Kishan and found the following external injuries :- (1) Incised wound (stitched) 4" x 2" x 5" on the epigastric and umbilical region of abdomen obliquely laced. Coils of intestine were coming out through the wound. (2) Incised wound 11/2" X 1/2" X 1/2" on the left arm over the elbow joint longitudinally placed. (3) Abrasion 11/2" X 11/2" on the left shoulder joint. n dissection he noticed :" (1) Punctured wound on the enterolateral surface of stomach. (2) Rupture of spleen 3" x 2" x 2" on the superior surface. (3) Dislocation of left shoulder joint with fracture of left scapula on superior border. All the injuries, according to him were antemortem in nature and cause of death was due to shock as a result of excessive bleeding from stomach and spleen. Post-mortem examination on the dead body of deceased Raghu Kishan was conducted by Dr. Samanka Kabi Satpathy, PW-8. On examination he noticed the following external injury : (1) Incised wound (1" x 1/4"), 1" above the right illiocchrest (joint) extending into periotonial cavity. ON dissection of the dead body he found cut injury both on the right illiac fossa and right kidney. All the above injuries, according to him, were antemortem and were sufficient to cause death in ordinary course of nature. There was no dispute either before the trial Court or before us that both the deceased died homicidal death. ON dissection of the dead body he found cut injury both on the right illiac fossa and right kidney. All the above injuries, according to him, were antemortem and were sufficient to cause death in ordinary course of nature. There was no dispute either before the trial Court or before us that both the deceased died homicidal death. In that view of the matter, the only question that falls for consideration is whether the accused persons were responsible for the death of both the deceased. ( 6 ) IN support of the appeal, the learned counsel for the accused persons has raised the following contentions (I) Since the incident occurred during early hours of the evening inside village 'basti', the neighbours were the most natural witnesses who should have been examined to unfold the narrative, but instead the prosecution remained satisfied by examining the two relations of the deceased, namely, Ratni Kishan, PW-2 and Bijula Kishan, PW-3 and, so, their evidence should be viewed with suspicion particularly when PW-2"s evidence of witnessing the assault appears to be doubtful; (II) Evidence reveals that deceased Raghu Kishan was not in a fit state of mind to make any statement as to the cause of his death and, therefore, in absence of corroboration, his dying declaration recorded by the doctor, PW-8 should not be accepted and relied upon to base conviction; and (III) There being no evidence of common intention to do away with both the deceased, finding of guilt recorded against all the accused persons under section 302 with the aid of Section 34 IPC is unsustainable. ( 7 ) LEARNED Additional Government Advocate on the other hand, submitted that the two eye witnesses (PWs 2 and 3) have given a graphic picture of the incident that happened on the Fateful day and the learned Sessions Judge on thorough scrutiny, has found them to be true and trustworthy and accordingly placed implicit reliance on their testimony. Added to that, he also accepted the dying declaration of deceased Raghu Kishan recorded by PW-8 as a strong piece of evidence in support of the charge and consequently held the accused persons guilty of the offence and there being no infirmity in the judgement no interference is called for. Added to that, he also accepted the dying declaration of deceased Raghu Kishan recorded by PW-8 as a strong piece of evidence in support of the charge and consequently held the accused persons guilty of the offence and there being no infirmity in the judgement no interference is called for. ( 8 ) THE whole prosecution case mainly rests on the eye witness account of Ratni Kishan, PW-2, Bijula Kishan, PW-3 and the dying declaration of deceased Raghu Kishan recorded by. Dr. Sasanka Kabi Satpathy, PW-8. The alleged offence being murder which visits the perpetrator on crime with minimum sentence of life imprisonment, we have scrutinised the evidence perspicaciously in an effort to find whether the same is unimpeachable and satisfies judicial conscience to return a verdict against the accused persons. Ratni Kishan, PW-2 who claims to be eye-witness to the incident stated that the accused persons being variously armed suddenly emerged and enquired of her husband. Being apprehensive of their aggressive attitude, she kept her husband concealed in the house by covering a gunny bag. In the meanwhile, the accused persons finding both the deceased asked them as to why they were playing sorcery on their ladies and children and so saying they attacked them with the weapons held by them. As deposed to by her, accused Butia and Kamra assaulted them with lathis and accused Mahuri with a 'gupti'. To appreciate her version, it is necessary to have a bird's eye view of the evidence of her husband, Rathi Kishan, PW-4. His evidence revealed that he was present when the accused persons being variously armed came to his house. So in order to save him from their wrath his wife (PW-2) kept him hidden by closing the door from inside and she herself also remained with him till the accused persons dispersed. This evidence of her completely demolishes the eye witness account of PW- 2 because it could not have been possible on her part to witness the assault on both the deceased when she all along remained with her husband in a closed room. We, therefore, exclude her evidence as unworthy of credit. Having done so, there remains the evidence of the only eye witness Bijula Kishan, PW-3. We, therefore, exclude her evidence as unworthy of credit. Having done so, there remains the evidence of the only eye witness Bijula Kishan, PW-3. We have scrutinised his evidence in great detail with the assistance of the counsel for both the parties and do not find any infirmities or incongrulities therein so as to doubt his veracity. He has given full account of the incident as to how both the deceased were given fatal blows which resulted in their death. He was a neighbour of both the deceased and hearing shrieks he came to their house and found them being assaulted by accused Kamra and Butia with lathis and by accused Mahuri with a Gupti. He has specifically stated that accused Mahuri plunged Gupti into the abdomen of deceased Ladra and in the waist of' deceased Raghu. Learned counsel for the accused assailed his evidence that he was a close relation of both the deceased and, therefore, being an interested witness his evidence should be eschewed out of consideration. As dexterously emphasised by the Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate reasons for accepting or rejecting it and that no evidence should at once be disregarded simply because it came from interested persons. (See Chandra Madhya Tiwari v. State of Madhya Pradesh AIR 1992 SC 891 : (1992 Cri LJ 109) and Anwaruddin v. Shakoor, AIR 1990 SC 1242 : (1990 Cri LJ 1269 ). Keeping the well settled principle of law in mind and having scanned the evidence of Bijula Kishan, PW-3, we are satisfied that his evidence being cogent and convincing inspires confidence wherefore, we are inclined to rely upon his ocular testimony and to act upon it when there is no evidence of any other neighbour/independent witness having witnessed the incident. ( 9 ) THE next question arises as to what value should be attached to the dying, declaration recorded by PW-8 and whether conviction can be based solely on such dying declaration without insisting for cor-roboration. ( 9 ) THE next question arises as to what value should be attached to the dying, declaration recorded by PW-8 and whether conviction can be based solely on such dying declaration without insisting for cor-roboration. In this connection we may trace the law as decided by the Apex Court more than four decades ago in the case of Ram Nath Madhoprasad v. State of Madhya Pradesh, AIR 1953 SC 420 : (1953 Cri LJ 1772) where it was observed :"it is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the marker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. "the aforesaid decision was taken note of and considered in Khushal Rao v. State of Bombay; AIR 1958 SC 22 : (1958 Cri LJ 106) where the Court held that the observation quoted above is in the nature of obiter dicta. "the aforesaid decision was taken note of and considered in Khushal Rao v. State of Bombay; AIR 1958 SC 22 : (1958 Cri LJ 106) where the Court held that the observation quoted above is in the nature of obiter dicta. In the facts and circumstances of the case, the Court though found the dying declaration to be not true, but their Lordships, on consideration of the relevant provisions of the Evidence Act, laid down the law as under :-"1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;4) that a dying declaration stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character; and6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earlier opportunity and was not the result of tutoring by interested parties. "the ratio laid down in Khushal Rao's case (1958 Cri LJ 106) (supra) has been followed in a catena of later decisions. "the ratio laid down in Khushal Rao's case (1958 Cri LJ 106) (supra) has been followed in a catena of later decisions. (See State of Uttar Pradesh v. Ram Sagur Yadav, AIR 19s5 SC 416 : (1986 Cri LJ 836), Padmaben Shamalbhai Patel v. State of Gujarat, 1991 (1) JT (SC) 205 and State of Orissa v. Bansidhar Singh; (1996) 2 SCC 194 . ( 10 ) UNDER Section 32 (1) of the Evidence Act statements made by a person since dead as to the cause of his death or the circumstances of the transaction which resulted in his death are admissible in evidence. Their admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath - 'menomoriturus pracsumuntur mentri. ' The general principle on which these species of evidence are admitted is that they are declarations made in extremity, when the maker is at a point of death and when every hope of this world is gone and when even motive to falsehood is silenced, and the mind induced by the most powerful considerations to speak the truth a situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by positive oath administered in a Court. In the case in hand Dr. Sasanka Kabi Satpathy, PW-8 who admitted deceased Rahhu Kishan as inpatient in the hospital, recorded his dying declaration. Ext. 7, wherein he stated that accused Mahuri Kishan stabbed him with a Gupti and others with lathis. As the evidence of PW-8 goes, no relation of deceased Raghu Kishan nor any police officer was present in the hospital when his statement was recorded. This excludes as the possibility of tutoring by any interested person. As to his mental condition, it has been elicited during cross-examination that he was mentally well though he was physically feeling restless due to pain. Having analysed the dying declaration in the light of the decision of the Supreme Court and the principles embodied in Section 32 of the Evidence Act, we are of the opinion that there being no infirmity in such dying declaration can be relied upon to form the basis of conviction. Having analysed the dying declaration in the light of the decision of the Supreme Court and the principles embodied in Section 32 of the Evidence Act, we are of the opinion that there being no infirmity in such dying declaration can be relied upon to form the basis of conviction. ( 11 ) THIS takes us to find whether in the facts and circumstances the accused persons had the common intention to commit the murder learned counsel appearing for the accused persons contended that the prosecution could not satisfactorily prove by leading acceptable evidence that there was prior consent or prearranged plan to do away with both the deceased and, therefore those accused persons against whom there is evidence of their having taken part in the assault are liable for their individual act. Common intention within the meaning of Section 34 IPC implies prearranged plan pursuant to which the criminal act was put to action. It, therefore, follows that there must be a prior meeting of mind. Existence of prior concert is to be determined with reference to the facts and circumstances of each case. The conduct prior to commission of offence, nature of injuries and seat of assault and subsequent conduct; such as running away together are some of the salient features from which inference of common intention can he drawn. ( 12 ) IT may be recalled, it is the consistent case of the prosecution that accused Mahuri Kishan inflicted fatal blows to both the deceased with a Gupti and others assaulted them with lathis. Post-mortem reports show that only deceased Ladra had sustained abrasion on the left shoulder, on dissection of which fracture could be noticed and so far deceased Raghu was concerned he had no other injury except the stab wound. This clearly indicates that those accused who were armed with lathis, bow and arrows had no intention to do away with the deceased. Their intention however, was to give them a good thrashing for playing sorcery on their female folk and children. In that view of the matter, we are of the opinion that accused Mahuri Kishan is liable for the offence under Section 302 and others under Section 326/34 IPC. ( 13 ) REGARD being had to the back-ground facts and circumstances of the case, we allow the appeal in part. In that view of the matter, we are of the opinion that accused Mahuri Kishan is liable for the offence under Section 302 and others under Section 326/34 IPC. ( 13 ) REGARD being had to the back-ground facts and circumstances of the case, we allow the appeal in part. While upholding the conviction and sentence of accused Mahuri Kishan, we alter the conviction of the remaining accused persons namely; Dutia Kishan, Butia Kishan and Kamra Mohant to Section 326 read with Section 34 IPC and sentence them to undergo rigorous imprisonment for five years. In the meanwhile if they have served out the sentence of five years as imposed by us, they be set at liberty forthwith if not required in any other case. ( 14 ) R. K. PATRA, J. , I agree. Appeal partly allowed.