P. G. Agarwal, J. — This jail appeal by accused-appellant Md Ayub Ali is directed against the judgment and order passed on 14.7.1997/19.7.1997 in Sessions Case No, 17 of 1996 (GR Case No. 137/94) by Shri M. Goswami, learned Sessions Judge, Dhubri, whereby accused-appellant was convicted under section 302 of the Indian Penal Code (IPC) and sentenced to imprisonment for life with a fine of Rs.800, in default of payment of fine to further rigorous imprisonment for two months. 2. The deceased Md Mafia! Haque Biswas was owner of a plot of land situated at Village Srirampur, by the side of the said land there was a plot of land belonging to the uncle of the deceased. There was a boundary dispute and on the fateful day, that is, in 20.6.1994, at about 7.00 AM while the deceased along with Chand Mia, PW 6 was working in the field, the accused Ayub Ali, Jamser Ali and other 8/9 persons came there and there was discussion regarding settlement of boundary, which as usual turned to altercation. According to the prosecution, in the midst of the said altercation, the accused-appellant Ayub Ali took out a dagger which was kept hidden in umbrella and stabbed the deceased in his abdomen. Causing the injury the accused fled away along with the weapon of assault. The injured Maflal Haque Biswas was taken to the hospital where the Doctor declared him brought dead. 3. On FIR being lodged, police registered a case under sections 147/148/ 149/447/302/325 of the IPC and after usual investigation submitted charge sheets against, as many as, 13 persons. One of the accused Abdul Rahman Sarkar died during the pendency of the trial. The case was committed before the Court of Sessions and the learned Sessions Judge, Dhubri framed charges against all the accused persons under sections 149/302 of the IPC and an alternative charge of section 302 of the IPC against all the accused persons. During trial prosecution examined, as many as, 10 witnesses and after trial the learned Sessions Judge acquitted 11 accused persons and convicted and sentenced only the accused-appellant as above. Hence the present appeal. 4. We have heard Shri BD Konwar, learned Advocate who was appointed as Amicus Curiae and Mr. D. Das, learned Public Prosecutor for the State of Assam. 5. In this case there is no dispute as to the killing of Mafial Haque Biswas. Hence the present appeal. 4. We have heard Shri BD Konwar, learned Advocate who was appointed as Amicus Curiae and Mr. D. Das, learned Public Prosecutor for the State of Assam. 5. In this case there is no dispute as to the killing of Mafial Haque Biswas. PW 8, Dr. DurgaPrasad Sarma, who held the autopsy on the dead body found an oblique cut injury in the abdomen in the left lumber region 4" in length with full thickness cut in the abdomen wall. Colon oozed out of the wound. There was swelling with abrasion on the upper part of the right orbit. On examination the Doctor found that peritoneum was cut below the injury No.l and there was perforation in the descending colon also. 6. Considering the medical and oral evidence on record, there is no doubt whatsoever that this is a case of homicide. 7. In order to decide as to who was the author of the said injuries, we find that there are two eye witnesses in the present case, PW 1, Bakhar Ali and Chand Mia, PW 6. They have categorically deposed that at the relevant time, there was an altercation between the deceased and the accused persons regarding the boundary of their cultivable land and while the altercation was going on, the accused appellant took out a dagger and stabbed the deceased. PW 6 is an 'Adhiyar' of the deceased and at the relevant time was working in the field belonging to the deceased and the deceased was standing near him. Shri BD Konwar, learned Amicus Curiae has submitted that PW 1, Bakkar Ali was a chance witness as his house is situated at a far distance place from that of the deceased. However, on perusal of the evidence, we find that his land was situated near the place of occurrence and while he was going to his own field he witnessed the incident. This PW 1 and PW 6 are natural witnesses. As the incident took place in broad day light this cannot be a case of mistaken identity. PW 1 is an independent eye witness and from his cross examination, nothing has come out to show that he has deposed falsely or that he has any axe to grind the accused. This PW 1 and PW 6 are natural witnesses. As the incident took place in broad day light this cannot be a case of mistaken identity. PW 1 is an independent eye witness and from his cross examination, nothing has come out to show that he has deposed falsely or that he has any axe to grind the accused. The only contradiction that has been brought out is that in the statement before the police he had stated that the assailant brought out the dagger from his umbrella, whereas in his deposition before the trial Court he said that the accused brought out the dagger from under his garments. The witness admits that he did not remember exactly what he said earlier but the fact remains that the dagger was brought out from the umbrella. PW 1 is aged about 60 years and being an unsophisticated village person, he might have felt nervousness while deposing before the Court. The learned trial Judge considering the evidence of two eye witnesses found their testimony as reliable and trustworthy and going through their testimony we also find that they are reliable witnesses. 8. In addition to the evidence of two eye witnesses, in this case, there is dying declaration made by the deceased before his wife Monowra Khatun, PW 4 and sister Saleha Khatun, PW 3. The prosecution evidence is that soonafter the incident, the injured was brought to his house wherefrom he was taken to Kukurmara Hospital. PW 4 has stated that her husband was brought home in hand cart and when it reached the compound, the husband asked for water from her. In the meantime, PW 3 also arrived and on being asked by PW 3, the deceased told them that he has been assaulted by Ayub AH, the accused appellant. The evidence of PW 4 is duly supported and corroborated by the sister, PW 3. The law regarding dying declaration has been laid down by the Supreme Court in catena of decisions. In Kushal Rao vs. State of Bombay, AIR 1958 SC 22 , it was held as under : “It cannot he laid down as an absolute rule of law that a dying declaration cannot be the sole basis of conviction unless it is corroborated. In Kushal Rao vs. State of Bombay, AIR 1958 SC 22 , it was held as under : “It cannot he laid down as an absolute rule of law that a dying declaration cannot be the sole basis of conviction unless it is corroborated. It should be subject to close scrutiny but once the Court has come to the conclusion that the dying declaration was the truthful version as to the cause of death then there is no need of further corroboration.” In the case of Uttar Pradesh vs. Ram Sagar Jadav, AIR 1985 SC 416 , the Hon'ble Supreme Court reiterated its earlier decision in the following words : “It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. 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 or convincing that the Court may, for its assurance look for corroboration to the dying declaration.” 9. In the instant case the dying declaration is oral and that has been brought on record through PW 3 and PW 4. They being the wife and sister of the deceased, naturally, the latter reported to them and as the deceased had asked for water, as stated by the witnesses, it can safely be inferred that the deceased was in a position to make the statement. There is no strict rule of law that the close relations of the deceased are untruthful witnesses and theN statement are to be disbelieved. On the contrary, in- the case of Bishen Singh vs. State of Punjab, AIR 1973 SC 2443 , the Apex Court observed : “Normally the close relative of the deceased will be more reluctant to spare the real assailants and falsely mention the names of the other persons as those responsible for causing injury to the deceased.” In this case, as many as, 13 persons were charge-sheeted but the deceased implicated only one person and neither PW 3 nor PW 4 had tried to implicate the other accused persons. The dying declaration, therefore, is reliable and can be acted upon. 10. Besides, the evidence of the eye witnesses and the dying declaration, we also find that there is a confessional statement made by the accused before the Magistrate TC Jain, PW 9. On 5.7.94 the accused was produced before the Magistrate to record his confessional statement, Ext 5. It is a well settled principle of law that a confessional statement if voluntarily and truthfully made is an efficacious proof of guilt. However, when acting on such confession the Court must apply a double test: (1) Whether the confession is perfectly voluntary ? (2) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine quo non for its admissibility in evidence. If the confession appears to the Court to have caused by any inducement, threat or promise such as mentioned in the section 24 of the Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession, come to the finding that what is stated there in is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. 11. In the statement under section 313 of the Code of Criminal Procedure Code (CrPC) the accused has stated that Ext 5 was not made voluntarily by him as he was tutored by police for four days and tortured to confess. This seems to be an after thought only because on perusal of the record of the learned trial Court it is seen that the accused was never in police custody for four days. He was arrested by the police on 4.7.1994 and forwarded in the early morning of 5.7.1994. The recording Magistrate also found that no sufficient time was consumed by the police in forwarding the accused, he also put the relevant questions as to why he wants to confess and he also told the accused that if does not confess he will not be sent back to police. The recording Magistrate also found that no sufficient time was consumed by the police in forwarding the accused, he also put the relevant questions as to why he wants to confess and he also told the accused that if does not confess he will not be sent back to police. The learned trial Judge after discussing the entire confession came to the finding that Ext 5 was made voluntarily by the accused and we also find no basis to take a contrary view of the matter. The relevant portion of the confessional statement, if translated into English, reads as follows : “About 15/16 days back one day about 9.00 AM myself along with VDP Secretary, Jabar and Baten, the opposite party called the village people to settle over the matter. In the meanwhile, I had an altercation with Mafial which continued for half-an-hour. The deceased assaulted me on my buttocks with 'Khanta'. Thereafter, I with the help of a dagger, carried by me stabbed Mafial in the abdomen and thereafter ran away along with the dagger. I stayed in the house of Matleb at Chirakhowa Gaon, thereafter shifted to Kader's house at Hajirhat and later the police arrested me from the house of one Saheb of Charkanaimara.” We thus find that the confessional statement given by the accused is similar to the prosecution version and fully corroborates the time, place and the date of occurrence. The weapon of assault and the site of injury corroborates the medical evidence on record. The evidence of the accused that he was arrested from the house of one Saheb of Village Charkanai was corroborated by the investigating Police Officer. Thus the confessional statement is fully corroborated on all material points. There is also sufficient support to the prosecution case and it is fully consistent with the prosecution story of the incident. We, therefore, held that the confessional statement, Ext 5 made by the accused is voluntary and true. 12. The appellant at the time of recording his statement under section 313 of the CrPC, for the first time, claimed that the statement made by him was no voluntary. We, therefore, held that the confessional statement, Ext 5 made by the accused is voluntary and true. 12. The appellant at the time of recording his statement under section 313 of the CrPC, for the first time, claimed that the statement made by him was no voluntary. In Shankaria vs. State of Rajasthan, AIR 1978 SC1248 it was held by the Apex Court that where the confession was not retracted at the earliest opportunity but after lapse of several months when the prosecution evidence is closed and the accused for the first time during examination under section 313 retracts the confession, the confession could not be accepted as not voluntary. 13. In view of the testimony of the eye witnesses, the dying declaration and the confessional statement of the accused appellant, we have no hesitation whatsoever to hold that the accused appellant Ayub Ali killed the deceased. Learned counsel for the appellant has submitted that the accused never intended to kill the deceased as the deceased has sustained only one stab injury. There cannot be any direct evidence as regards the intention, which is to be gathered from the facts and circumstances of the case, the nature of the injuries sustained and the weapons used. In this case, the weapon used was a dagger and from the evidence on record we find that the accused had carried the dagger hidded under his umbrella which he was carrying. The accused had gone to settle a boundary dispute and if he had no intention to take the law into his own hands, there was no need for him to carry the dagger hidden in his umbrella. Further the injury was caused on the vital part of the body, that is, the abdomen and the intention cannot be gathered from the number of stab alone. In the present case the dagger was stabbed with such a force that even the peritoneum and colon were affected. There is no shade of doubt that the accused had not intended to kill the deceased. In the present case the dagger was stabbed with such a force that even the peritoneum and colon were affected. There is no shade of doubt that the accused had not intended to kill the deceased. In the case of State of UP vs. Ram Sagar Yadav, AIR 1985 SC 416 the Apex Court observed : “Distinction between the murder and culpable homicide not amounting to murder is often lost sight of, resulting in undue liberty in favour of under serving culprits like the respondents police officers where the injuries suffered would appear to fall under section 300 since the act by which the death was caused was done with the intention of causing such bodily injuries as the respondents knew to be likely to cause his death.” 14. The learned Amicus Curiae has also submitted that in this case at the relevant time, that is, at the time of occurrence, the accused appellant was a minor and, as such, he is entitled to discharge/release on probation and in support of his contention, the learned Amicus Curiae has referred to the decision of the Apex Court in the case of Gopinath Ghose vs. State of West Bengal, AIR 1984 SC 237 . 15. The above referred decision was in respect of West Bengal Child Act, where 'child' was defined to be a person who has not attained the age of 18 years. In view of the introduction of Juvenile Justice Act, 1988, a juvenile is a person who has not attained the age of 16 years. Now we are to see whether the accused appellant was below the age of 16 years at the time of commission of the offence. It may be mentioned that the above plea was not raised before the trial Judge and according to the prosecution the accused was a major at the relevant time. However, in the statement under section 313 of the CrPC for the first time that accused stated that he was 19 years of age and as such the learned counsel for the appellant has submitted that at the relevant time the accused was around 16 years of age. However, in the statement under section 313 of the CrPC for the first time that accused stated that he was 19 years of age and as such the learned counsel for the appellant has submitted that at the relevant time the accused was around 16 years of age. The learned trial Judge who had the occasion to see the accused appellant during the entire trial had, however, opined in the judgment that although the accused claims to be of 19 years of age he looks to be a man around 23 years of age. Soon after the occurrence, the accused was produced before the Magistrate who recorded his confessional statement and before the trial Magistrate the accused gave his age as 23 years, in Ext 5, the confessional statement. The subsequent mention of age as 19 years may be due to wise counsel received by the appellant in jail or elsewhere. Further, the accused in his statement under section 235 of the CrPC has stated that he has got a wife and two minor children, who are dependant on him. Hence, since the year 1997 the accused had a wife and two minor sons, it cannot be said that in the year 1994 he was boy below 16 years of age. 16. Considering all aspects of the matter, we find no force in the above submissions. In the result, there is no merit in this appeal and accordingly the appeal is dismissed. The conviction and sentence as passed by the learned Sessions Judge is affirmed. Send down the records.