Judgment A.K.Sinha, J. 1. Both these appeals were heard together as both of them arise out of the common judgment passed by 4th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 4 of 1981, whereby he convicted the appellants, namely, Indra Mohan Jha, Narendra Singh and Surendra Singh under Secs. 302/34 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for life. During the pendency of the appeals the appellant No. 1, Umeshwar Singh of Criminal Appeal No. 370 of 1991, died and as such the appeal against him abated. 2. In short, the prosecution story, as unfolded in the fardbeyan of Ram Kumar Singh recorded by ASI of Sadar Police Station. Muzaffarpur on 7-4-1978 at 1.00 p.m. at Sadar Hospital, Muzaffarpur, is that, about 15 days prior to the alleged occurrence, the informant was going on a bullock cart through the field of Mahanth Ram Chandra Das, when Harendra Singh @ Nanhki became ready to quarrel with him at the instance of Genesh Singh and Mathura Singh who were the agnates of the informant on account of some land dispute. The informant any how managed to escape and avoided any untoward incident. 3. The second part of the incident is that a day prior to the alleged occurrence, the informants brother Ram Narayan Singh had gone to the house of Krishnanandan Singh to realise the dues of milk and he was sitting at his door because Krishnanandan Singh had gone to change, the money and at that very time Harendra Singh came and assaulted Ram Narayan Singh with iron rod for which a Sanha was lodged at Mushari O.P. It is alleged that when they came back from Mushari O.P. Mathura Singh and Genesh Singh gave threats that if the case is not withdrawn or the land is not sold in their favour, they will be done to death. There was meeting also at the residence of Mathura Singh in the previous night of the alleged occurrence and the informant disclosed about holding of the meeting with his father. 4. There was meeting also at the residence of Mathura Singh in the previous night of the alleged occurrence and the informant disclosed about holding of the meeting with his father. 4. On the alleged date of occurrence the informants brother Ram Narayan Singh along with Charwaha Satahu Chamar were returning with animals from the pond and when they reached on the pitch road near Rahua Middle School, all the seven accused named in the FIR materialised there being armed with lathi, bhala and chhura and after surrounding Ram Narayan Singh started assaulting him with lathi. Seeing this, Stathu Chamar ran away and informed the family members of the informant and on getting information from him, the informant along with his elder brother Ramadhar Singh came running to the place of occurrence where the accused-persons were assaulting Ram Narayan Singh. It is alleged that Ganesh Singh and Surendra Singh caught hold of the informant, whereas, Mathura Singh and Ramswarath Singh caught hold of Ramadhar Singh, Mathura Singh ordered to kill on which Harendra Singh gave a chhura blow to Ram Narayan Singh whereas Umeshwar Singh. Surendra Singh and Indra Mohan Jha assaulted Ramadhar Singh, with lathi and bhala. Ramswarath Singh tried to assault the informant but any how he managed to flee away by raising alarm on which many persons from the village came and saw the assailants fleeing away. Thereafter, the informant took his brothers to Sadar Hospital with the help of B.D.O. of Mushari Block but on the way Ram Narayan Singh died. However, Ramadhar Singh received treatment at Sadar Hospital, Muzaffarpur. On 9-4-1978 Shri A.K. Chand, Judicial Magistrate, 1st Class; Muzaffarpur recorded the statement of Ramadhar Singh who died in course of treatment on 11-4-1978. The dying declaration of Ramadhar Singh has been proved as Exhibit 1. 5. The police instituted a case under Secs. 147,148,149,323,324,307 and 302 of the Indian Penal Code, against seven accused-persons on the basis of the fardbeyan of the informant and submitted charge-sheet in the case. Ultimately the case was committed to the Court of Sessions for trial. 6. All the seven accused were charged under Sec. 302 read with Sec. 149 of the Indian Penal Code and appellant Harendra Singh was further charged under Sec. 302 of the IPC to which they pleaded not guilty and the defence plea was that the accused-persons are innocent. Ultimately the case was committed to the Court of Sessions for trial. 6. All the seven accused were charged under Sec. 302 read with Sec. 149 of the Indian Penal Code and appellant Harendra Singh was further charged under Sec. 302 of the IPC to which they pleaded not guilty and the defence plea was that the accused-persons are innocent. On behalf of the Harendra Singh plea of alibi has been taken on the ground that he was admitted in T.B. Ward of Muzaffarpur Hospital. Similar plea of alibihas been taken on behalf of Mathura Singh, Ramswarath Singh and Ganesh Singh on the grounds that they had gone to attend Tilak ceremony, Saradh ceremony and for realisation of dues to other places on the alleged date of occurrence. 7. In order to prove the charges, the prosecution has examined altogether seven witnesses and two Court witnesses were examined. The defence has also examined 12 witnesses. PW 1 Shri A.K. Chand, Judicial Magistrate, 1st Class, Muzaffarpur has been examined to prove the dying declaration (Ext. 1) recorded by him at Sadar Hospital, Muzaffarpur on 9-4-1978. PW4 Ram Pravesh Singh, PW3 Radha Singh and PW 6 Ram Kumar Singh (informant) are the eye-witnesses who claimed to witness the entire occurrence, PW4 Muniwar Pathak, ASI had recorded the Fardbeyan (Ext. 4) of the informant at Sadar Hospital, Muzaffarpur and had prepared the inquest report (Ext. 3) of Ram Narayan Singh. He has deposed that he sent the fardbeyan to the Police Station for lodging the FIR, PW 5 Dr. Manoranjan Kumar Srivastava had conducted the post-mortem examination on the dead-body of both the deceased and he has proved the post-mortem reports (Exts. 5 and 5/1). PW 7 Madho Singh is the first I.O. of this case, who conducted the investigation at the initial stage but on the order of his superior officer he handed over the charge of the Investigatfon to Officer-in-Charge of Sadar P.S. namely, Ganesh Prasad Singh who has not been examined. But the relevant portion of the case-diary which relates to the investigation conducted by him has been proved by PW 7 and the same has been marked as Exts. 11 to 11/6. But the relevant portion of the case-diary which relates to the investigation conducted by him has been proved by PW 7 and the same has been marked as Exts. 11 to 11/6. Two Court witnesses are Rajendra Mishra, Panchayat Sevak of Rohua Gram Panchayat and Hira Prasad Singh, Mukhiya of Rohua Gram Panchayat, CW1 has proved entries of the list of family members of the residents of Panchayat which has been marked as Court Ext. 1 and the certificate on that register has been marked as Court Ext. 2. CW 2 Hira Prasad Singh has proved the certificate (Court Ext. 3) which is in the pen of Gram Sevak, Rajendra Mishra and bears his signature and he has deposed that Raghvendra Singh who is also known as Raghvendra Narayan Sharma had five sons and the name of his fourth son is Harendra Singh @ Nankhi. He has also stated that there is no body else known as Raghvendra Singh in his village. He has also proved the certificate written by him on the list of the family members which has been marked as Court Exts. 2 and 2/1. There is nothing in the cross-examination of CWs 1 and 2 to disbelieve their evidence and it appears that the list of the family members entered in the register was maintained in the Gram Panchayat. They proved the relevant entries made therein and CW 2 also testified to the effect that Harendra Singh @ Nankhi was the fourth son of Raghvendra Singh and his statement is inconfirmity with the entries made in the register maintained in the Gram Panchayat wherein the names of the family members of the residents of Apuchh village have been mentioned. 8. So far the defence witnesses are concerned most of them have formally proved certain documents which go to show the old litigation going on between the parties and this is admitted fact that enmity was going on between the parties on account of land dispute for which several litigations were fought between them. Therefore, the documents relating to the litigation between the parties, in fact, does not help the defence in any way to prove their innocence and at best it tends to prove the reason for enmity. The defence has also proved the entry in the name of Ram Narayan Singh in the out door register (Ext. Therefore, the documents relating to the litigation between the parties, in fact, does not help the defence in any way to prove their innocence and at best it tends to prove the reason for enmity. The defence has also proved the entry in the name of Ram Narayan Singh in the out door register (Ext. C) which relates to the injury sustained by Ram Narayan Singh on 6-4-1978. Exts. F and G are requisitions and report regarding the non-availability of the medical certificate which are formal documents. DW1 is Vishwanath Prasad Singh, DW 5 is Ram Briksha Singh who proved Ext. C. DW 8 is Dr. Rajendra Das who proved Exts. E and Y which were marked for identification and DW 2 is Ram Chandra Rai who proved Exts. L, M, N and O, and has been examined on the point of alibi taken by the defence. The learned trial Court has disbelieved the plea of alibi taken on behalf of the defence by discussing the evidence of DWs in thorough detail and I do not find any infirmity in the conclusion drawn by the trial Court. On carefully scrutinising the evidence adduced on the point of alibi, I am of the view that the trial Court has rightly disbelieved the plea of alibi taken by the defence. Similarly, the evidence of DW 2 Ram Chandra Rai, who has been examined to say that the deceased were assaulted by Adjvasis on the alleged date and time of the occurrence has been disbelieved by the trial Court and in my view, the trial Court rightly did so. So, the defence plea that Ram Narayan Singh and Ramadhar Singh were murdered by Adivasis, who attacked them in revenge because they had molested Adivasi girl has also got no leg to stand and it appears that such a plea has been taken for the sake of defence. In course of argument, the learned Counsel for the appellants also did not press much on the defence plea of alibi taken on behalf of the accused/appellants and confined his submission only on ocular evidence of the eye-witnesses to the occurrence coupled with the evidence of the doctor and the I.O. as well as the dying declaration of Ramadhar Singh, which I will discuss hereinafter. 9. 9. First of all, I will deal with the dying declaration of Ramadhar Singh on which the trial Court has mainly relied to convict the appellants. PW 1 Sri A.K. Chand, Judicial Magistrate, 1st Class, Muzaffarpur had recorded the dying declaration (Ext. 1) of deceased Ramadhar Singh on 9-4-1978 at Sadar Hospital, Muzaffarpur. The English version of the dying declaration of Ramadhar Singh as deposed by PW 1 are as follows: Earlier a quarrel had been taken place relating to sugarcane. Thereafter, a day before yesterday, the fourth son of Raghvendra Singh assaulted me with chhura. There were other persons also with him whose names are Umeshwar Singh s/o Mahendra Singh and Indra Mohan Jha, who assaulted me with lathi. Surendra Singh was also with them with dagger (Chaku) who attacked me but I avoided that. This occurrence took place day before yesterday at about 11.00 a.m. in front of Rahua School on the pitch road. The aforesaid fourth son of Raghvendra Singh had come out from jail recently. When I had gone to save my brother, all the aforesaid persons assaulted me. It appears that after recording the aforesaid statement, the Magistrate put his signature on right hand portion of the statement recorded by him. It appears that one more line was recorded by the Magistrate at the bottom on the left side which was stated later on by Ramadhar Singh and the subsequent statement made by him reads as hereunder: It was Mathura Singh at whose instance the aforesaid persons assembled and committed the occurrence. 10. In order to test the reliability of the dying declaration it may be pertinent to state herein that the said dying declaration (Ext. 1) was recorded by Shri A.K. Chand (PW. 1) who was posted as Judicial Magistrate, 1st Class at Muzaffarpur. PW 1 has stated that on the instruction of the Chief Judicial Magistrate, Muzaffarpur, he went to Sadar Hospital on 9-4-1978 to record the dying declaration of Ramadhar Singh and at that time two nurses, namely, T.T. Annamma and Nila Mishra were present and in their presence he recorded the dying declaration of Ramadhar Singh. He further stated that two nurses had also signed over the dying declaration recorded by him in their presence. PW1 has deposed that Ramadhar Singh was in his sense and he asked his name and address which he replied clearly. He further stated that two nurses had also signed over the dying declaration recorded by him in their presence. PW1 has deposed that Ramadhar Singh was in his sense and he asked his name and address which he replied clearly. Thereafter, he asked Ramadhar Singh as to what happened with him and how. In reply whereof Ramadhar Singh gave his statement which he recorded. He admitted that he did not put any question in between and he also did not write the question which he had asked to the injured. But in his evidence he stated about the question asked by him. In cross-examination PW 1 has stated that the injured Ramadhar Singh was identified by the staff nurses and the injured himself disclosed his name and address to him. PW 1 could not say as to whether there was any time gap between the first part of the statement and the last portion of the statement comprising the last line which has been described by him as the statement recorded later on. But, from his evidence it appears that after recording the statement of injured Ramadhar Singh, he had put his signature and later on, the last sentence was recorded by him for which he has given his remarks in the bracket that the statement so recorded as last sentence was made to him later on. PW 1 has stated that the injured was speaking clearly and he made his statement in one go. He also stated that he was not known to the injured. He has denied the suggestion that he added the last sentence on the request of any one. He also admitted that the doctor was not present at the time of recording of the statement. So far the last sentence of dying declaration (Ext. 1) is concerned, it is established from the evidence of PW 1 that the same was recorded by him and no doubt can be raised regarding its genuineness because it is possible that after recording the main statement of the injured when he put his signature on the right side bottom the injured might have said something more which PW 1 recorded in the bottom on the left hand side and gave his remarks that the injured made that statement later on. The last sentence of the dying declaration of Ramadhar Singh simply discloses his impression regarding the complicity of Mathura Singh because he had enmity with him. So, the contents of the last sentence are also such that no doubt can be entertained on the statement made by the injured for the simple reason that the injured had not stated anything about other accused-persons and had simply expressed his impression regarding the involvement of Mathura Singh. 11. For placing reliance upon dying declaration the apex Court in the decision reported in A.I.R. 1958 SC 22, laid down certain test which are as follows: (i) That a dying declaration had 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 marker of the declaration. In such condition the dying declaration will stand on a much higher footing than a dying declaration which depends upon oral testimony; (ii) In order to test the reliability of the dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he has making the statement, by circumstances beyond his control; (iii) That the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 12. On the aforesaid touch stone, the dying declaration made by Ramadhar Singh fulfills and the requirements for its reliability because the dying declaration was recorded by a competent Magistrate, it was given in answer to the question put by the magistrate and was recorded in the words of Ramadhar Singh. The dying declaration (Ext. 1) also goes to show that it is free from tutoring because he has not named all the accused facing trial which he could have easily done. He has not named the murderer of Ram Narayan Singh nor has said anything about that. It also appears from his statement that his memory was sharp as was expected by an average person. He has not named the murderer of Ram Narayan Singh nor has said anything about that. It also appears from his statement that his memory was sharp as was expected by an average person. So far his statement that fourth son of Raghvendra Singh is concerned, it also looks very natural on the part of Ramadhar Singh to describe his assailant as the fourth son of Raghvendra Singh because it is very common even for a normal man to forget the name, Ramadhar Singh had retained enough memory to remember that the person who gave him chhura blow was the fourth son of Raghvendra Singh. It may be pointed out that the fourth son of Raghvendra Singh is none else but Harendra Singh which has been amply proved by the evidence on record and there is no dispute about. 13. The learned Counsel appearing for the appellants submitted that the dying declaration is not free from suspicion because it is not corroborated by the medical evidence, inasmuch, as Ramadhar Singh made statement to the effect that Umeshwar Singh and Indra Mohan Jha assaulted him with lathi but the Doctor (PW 5) did not find any injury caused by hard blunt substance. The submission has got no force in it because the lathi blow may not necessarily leave mark of injury and it is possible that the doctor who examined Ramadhar Singh might have missed to notice the superficial injury caused by lathi. It is also possible that by lapse of time the injury caused by lathi might have disappeared and so the doctor could not notice it and mention in his report. The law is well-settled that if the dying declaration as a whole was free from doubt, it was permissible to reject a part of it, if found untrue and could be separated. Further, if the dying declaration as a whole, recorded in circumstances which are free from suspicion, rings true, Court would be fully justified in acting upon it 1988 SCC (Cr) 291 ; Nand Kumar Khamkarv. State of Maharashtra and 1988 SCC (Cr) 103:1987 East Cr C 590 (SC); Dalbir Singh and Ors. V/s. State of Punjab relied upon]. 14. It is, therefore, clear that simply because the dying declaration (Ext. 1) has not been fully corroborated with the medical evidence it cannot be rejected and can from the basis of conviction. State of Maharashtra and 1988 SCC (Cr) 103:1987 East Cr C 590 (SC); Dalbir Singh and Ors. V/s. State of Punjab relied upon]. 14. It is, therefore, clear that simply because the dying declaration (Ext. 1) has not been fully corroborated with the medical evidence it cannot be rejected and can from the basis of conviction. Apart from that, it may be pertinent to mention herein that the dying declaration (Ext. 1) was recorded by PW 1 who was a Judicial Magistrate posted at Muzaffarpur and, on the instruction of the Chief Judicial Magistrate, he went to Sadar Hospital to record the dying declaration of Ramadhar Singh who was not known to him from before, as stated by him, and his evidence goes to show that Ramadhar Singh was in a position to speak and in one go he made his statement which was recorded by him. Therefore, judging from all angles, it would be appear that dying declaration made by deceased Ramadhar Singh is reliable and trustworthy which alone can from the basis for conviction. 15. Besides the dying declaration of Ramadhar Singh which appears to be quite reliable and trustworthy, I find that PWs 2 and 6 who are eye-witnesses to the alleged occurrence have corroborated the dying declaration of Ramadhar Singh on material points. The alleged occurrence took place near Rahua Middle School and on the alleged date of occurrence. PW 2 was a student of that School which is not in dispute. As such, PW 2 who claims to have seen the alleged occurrence appears to be natural witness. He has deposed that he heard hulla and went towards pitch road and saw Harendra Singh, Umeshwar Singh, Indra Mohan Jha, Ramswarath Singh, Surendra Singh, Mathura Singh and Genesh Singh had surrounded his brother Ram Narayan Singh. Harendra Singh was armed with dagger, Surendra Singh was having a knife, Umeshwar Singh was holding bhala and other accused were holding lathi in their hands. He has further stated that Indra Mohan Jha assaulted Ram Narayan Singh with lathi and when Ramadhar Singh and Ram Kumar Singh went to save him, accused Ganesh Singh and Surendra Singh caught them but Ram Kumar Singh managed to escape from their clutches and fled away and Harendra Singh assaulted Ram Narayan Singh with dagger whereas Umeshwar Singh assaulted him with bhala and Indra Mohan Jha assaulted him with lathi. According to PW 2 Mathura Singh gave order to kill. PW 2 has clearly stated that Harendra Singh gave a dagger blow to Ramadhar Singh which hit on the left side of his abdomen and Indra Mohan Jha Ramswarath and Mathura Singh assaulted Ramadhar Singh with lathi. According to PW 2 the place of occurrence is the pitch road and after assault accused-persons fled away. 16. PW 6 Ram Kumar Singh is the informant of the case who has made detailed statement as to how the occurrence took place and has corroborated the evidence of PW 2 by making specific statement to the effect that the appellant Harendra Singh gave dagger blow to Ram Narayan Singh and he also assaulted Ramadhar Singh with dagger whereas Umeshwar Singh assaulted Ram Narayan Singh with bhala on his right knee. He further stated that Ram Narayan Singh died on way to hospital and Ramadhar Singh was admitted at Muzaffarpur Hospital. But, he died on the following monday. This witness has made statement about the previous litigation going on between him and the accused-persons as also the occurrence which had taken place a day before the alleged occurrence. PW 6 has proved the fardbeyan (Ext. 4). He has also stated about the petition (Exts. 7 and 7/1) which he filed to protest against the investigation made by the first I.O. namely, Madho Singh who was removed from the investigation of the case and it was handed over to second I.O. namely, Ganesh Singh. 17. PW 3 who claimed to be eye-witness to the alleged occurrence has also supported the prosecution story. 18. The ocular evidence of PWs 2 and 6 on the point of assault final corroboration from the medical evidence of PW 5 Dr. M.K. Srivastava who found the following ante-mortem injuries on the person of Ram Narayan Singh: (i) Bruise 4" x 1/2" on the left side of abdomen. (ii) Bruise 3" x 1/2" on the right side of abdomen. (iii) Bruise with swelling 1" x 1/2" on occipital region of skull. (iv) Abrasion 1" x 1/2" on the buttock. (v) Lacerated wound 2" x 1/2" x scalp deep on the back. (vi) Abrasion 2" x 1/2" near left elbow joint. (vii) Abrasion 1" x 1/4" at right knee joint. (viii) Punctured wound 1" x 1/4" x bone deep on the right leg 4" below knee joint. (iv) Abrasion 1" x 1/2" on the buttock. (v) Lacerated wound 2" x 1/2" x scalp deep on the back. (vi) Abrasion 2" x 1/2" near left elbow joint. (vii) Abrasion 1" x 1/4" at right knee joint. (viii) Punctured wound 1" x 1/4" x bone deep on the right leg 4" below knee joint. (ix) Penetrating wound 1" x 1/2" x lung deep on the left scapular region on the back of the chest. On dissection of muscles it was found that plura had the sharp cut and the upper lobe of left lung was found punctured 2" x about 1-1/2 pint of blood was found in the plural cavity and the left lung was found coliapsed. PW 5 opined that cause of death was shock and haemorrhage due to above injuries. In his opinion Injury Nos. 1 to 7 were caused by hard and blunt object whereas Injury Nos. 8 and 9 were caused by sharp pointed weapon. PW 5 also held post-mortem examination on the dead- body of Ramadhar Singh on 11 -4-1978 at 1.50 p.m. and found following ante-mortem injuries: Abdomen was bandaged. The bandage was removed. Two stitched wounds found on the body with drainage tube attached to the left side of the abdomen. (i) Stitched wound oblique in direction on the left side of the chest near 7th intercoastal space extending from the posterior axillary lib 2" medical to the mid clavicular line about 5" long. (ii) A stitched wound "T" shaped, 6" long and 8" long (horizontal plus vertical) on internal dissection after the removal of the stitches the thoracic cavity was opened, the plura and the intercoastal muscles were found to have sharp cut wounds, which was stitched. The left lung had also sharp cut wound and found collapsed. On further trace it was also noticed that stomach had also sharp cut wound which was also, stitched. Blood was found in abdominal cavity. The cause of death was due to the above injuries caused by sharp cut weapon which may be chhura. 19 It would thus appear that ocular version of the eye-witnesses have been corroborated by the medical evidence of the doctor as referred to above. As such, there does not appear any reason to disbelieve the eye-witnesses account regarding the manner of assault which finds corroboration from the medical evidence. 20. 19 It would thus appear that ocular version of the eye-witnesses have been corroborated by the medical evidence of the doctor as referred to above. As such, there does not appear any reason to disbelieve the eye-witnesses account regarding the manner of assault which finds corroboration from the medical evidence. 20. The oral testimony of the eye-witnesses also establishes the place of occurrence. The eye-witnesses have consistently deposed that the occurrence actually took place on the pitch road near Rahua Middle School and the evidence of PWs 2 and 6 goes to show that after the assault Ram Naraytr Singh fled away towards School where he fell down and Ramadhar Singh also fell down below mango tree situated nearby. Therefore, there does not appear any inconsistency, if PW 3 deposed that Ramadhar Singh had fallen down near mango tree and Ram Narayan Singh had fallen down in the compound of the school after having been assaulted. It appears natural and possible that two brothers who were injured must have tried to flee away after being released by the assailants and fallen down to the near by places. PW 7 has also stated that he inspected the place of occurrence at 5.30 p.m in. between the Middle School and the road on the eastern side there is a shop of general provisions and a betel shop beside it and to the north of the road there was an Ashram and in front of Ashram on the northern flank by the side of road there was a mango tree below which he found blood like stains on soil and grass and he has further stated that in the compound of the Middle School which is situated five yards away from the shop of general provisions, he fpund blood stains and he also found blood like stains on the soil and grass from a place 30 yards west to the shop df the general provisions. From the evidence of the li;O. it can be gathered that he found blood stains from three different places situated in the close vicinity of the pitch road where the occurrence had taken place and as already stated above, it looks quite possible and natural that after the assailants fled away the injured must have tried to flee away and fallen down in the nearby places from where the I.O. collected the blood stains. Therefore, no doubt can be entertained as regards the place of occurrence as deposed by PWs. 2,3, and 6 who are eye-witnesses to the alleged occurrence. 21. It may be worthwhile to mention here that the learned trial Court has come to the conclusion that accused Mathura Singh, Ramswarath Singh and Ganesh Singh have been roped in falsely and held that they were not guilty of the alleged offence. The trial Court has discussed the evidence in that regard in full detail and I need not repeat the same because they are not concerned in these appeals. So, far the appellants are concerned, the trial Court found them guilty of the offence relying upon the dying declaration coupled with the ocular evidence of the eye-witnesses and corroborative medical evidence. I also find that in the dying declaration it has been clearly stated by Ramadhar Singh that Umeshwar Singh and Indra Mohan Jha assaulted with lathi whereas Harendra Singh (fourth son of Raghvendra Singh) gave him a chhura blow and Surendra Singh was armed with knife who hurled blow upon him which he avoided. The statement made by Ramadhar Singh in the dying declaration on the point of assault has been supported by PWs 2 and 6. There is of course some contradictions insofar as Umeshwar Singh (since dead) is concerned, because the witnesses stated that he was armed with bhala but this aspect has been thoroughly discussed by the trial Court and I do not find any reason to differ with the findings arrived at by the trial Court in this regard. Barring that, the contradictions which have been elicited in the evidence of PW 2 with regard to participation of indra Mohan Jha, I do not find any material contradiction in the evidence of PWs 2 and 7, inasmuch, as PW 7 has stated that PW 2 had not told him as to whether Indra Mohan Jha had given the first blow to Ram Narayan Singh and Umeshwar Singh had bhala in his hand and he had given bhala blow to Ram Narayan Singh. PW 7 stated that PW 2 had told him that Umeshwar Singh had lathi in his hand. PW 7 stated that PW 2 had told him that Umeshwar Singh had lathi in his hand. It would, therefore, appear that it is hardly material as to whether PW 2 omitted to say that Harendra Jha had given first lathi b\ow to Ram Narayan Singh and it is clear from the dying declaration that Umeshwar Singh was armed with lathi and the same is worth acceptance. As such, i am of the view that no material contradiction has been elicited in the evidence of PW 2 so as to disbelieve his evidence. 22. The learned Counsel appearing for the appellants submitted that the dying declaration made by Ramadhar Singh is doubtful because the two courses in whose presence it was recorded by PW 1 have not been examined. The submission of the learned Counsel is not acceptable in view of the clear cut and cogent evidence of PW 1 whose evidence is above doubt or suspicion. The evidence of PW 1, which have discussed above, goes to show that the dying declaration is above doubt and suspicion. As such, even if the two nurses in whose presence the dying declaration had been recorded have not been examined that does not impair the reliability of the dying declaration. 23. The next submission of the learned Counsel for the appellants was that Satahu Chamar, who first saw the occurrence and informed the informant has not been examined. The non-examination of Satahu Chamar cannot affect the prosecution in view of the ocular evidence of the eye-witnesses supported by medical evidence and the dying declaration made by Ramadhar Singh. It was next submitted that no independent witness has come forward to support the prosecution which throw doubt. This argument also does not carry any weight in it in view of the dying declaration which has been found to be reliable coupled with the other evidence on record. Lastly, it was submitted that the complicity of Indra Mohan Jha has not been established. But, I find that in the declaration it has been clearly stated that Indra Mohan Jha assaulted Ram Narayan Singh with lathi and this fact has been supported by PWs 2 and 6 also. The doctor also found ante-mortem injuries caused by hard and blunt substance on the person of Ram Narayan Singh. But, I find that in the declaration it has been clearly stated that Indra Mohan Jha assaulted Ram Narayan Singh with lathi and this fact has been supported by PWs 2 and 6 also. The doctor also found ante-mortem injuries caused by hard and blunt substance on the person of Ram Narayan Singh. As such, I find that there is clinching evidence on record against Indra Mohan Jha which goes to show that he had participated in the occurrence and had assaulted the deceased with lathi. Therefore, the participation of Indra Mohan Jha cannot be said to be doubtful by any stretch of imagination. 24. On consideration of the materials available on record, I find that the learned trial Court has rightly convicted the appellants in the manner as stated above. As such the order of conviction and sentence recorded by the trial Court is upheld. 25. In the result, therefore, I do not find any merit in both the appeals which are dismissed. The bail bonds of appellants Indra Mohan Jha and Surendra Singh of Criminal Appeal Nos. 370/91 and 400/91, respectively are hereby cancelled and they are directed to surrender before the trial Court to serve out the sentence. The appellant Harendra Singh of Criminal Appeal No. 400/91 who is in custody shall serve out the remaining part of the sentences.