Judgment B.K.Jha, J. 1. This appeal is directed against the judgment and order dated 21st January, 1998 passed by Sri Dharnidhar Jha, Additional Sessions Judge III, Saharsa, in Sessions Trial No. 87/1996 whereby the sole appellant, Sunder Yadav, has been convicted and sentenced to R.I. for life with fine of Rs. 15,000.00 under Section 302 read with sec. 34 of the Indian Penal Code, 1860 . In case of default in payment of find he has further been sentenced to R.I. for two years. 2. The facts giving rise to the present appeal are that on 5-8-1995 at 8 a.m. the buffalo of the informant (deceased), Gajendra Yadav was tied in his cattle shed. His own brother, the appellant, also tied his buffalo in that shed whereupon buffaloes of both started fighting with each other. At this, the informant, Gajendra Yadav, asked the appellant to take away his buffalo from his cattle shed but he did not agree. Then the informant, Gajendra Yadav, himself went to take out the buffalo of the appellant from his cattle shed. In the mean time, the appellant, Sunder Yadav and the absconding co-accused, Mahendra Yadav, came there with farsa and lathi. The appellant gave a farsa blow on the head of the informant, Gajendra Yadav and he sustained cut injury. Thereafter the co-accused, Mahendra Yadav, also gave a farsa blow on his head which produced cut injury and blood started oozing out. The appellant repeated farsa blow on the fingers of his left hand and he sustained out injuries on his two fingers. The further case of the prosecution is that while the informant was lying injured on the ground, the co-accused, Mahendra Yadav, assaulted him indiscriminately with lathi portion of farsa and he sustained injuries all over his body. Soon thereafter, the wife of the informant came and noticing his condition started weeping and raised alarm. Her outcry attracted the witnesses, Dinesh Yadav, PW1 and many other villagers whereupon the accused persons made good escape from there. Thereafter, Dinesh Yadav, PW 1, removed the informant on the Rickshaw of Kameshwar Sharma, DW1, to the State Dispensary, Sour Bazar for treatment, 3. The first I.O. of this case, PW 4, Dinbandhu Dubey, A.S.I, of Sour Bazar Police Station recorded the fardbeyan of the informant, Gajendra Yadav (Ext. Thereafter, Dinesh Yadav, PW 1, removed the informant on the Rickshaw of Kameshwar Sharma, DW1, to the State Dispensary, Sour Bazar for treatment, 3. The first I.O. of this case, PW 4, Dinbandhu Dubey, A.S.I, of Sour Bazar Police Station recorded the fardbeyan of the informant, Gajendra Yadav (Ext. No. 1) on the same day, i.e., 5-8-1995 at 10.45 a.m. in presence of the witnesses, his wife Anmol Devi, PW 3 and Dinesh Yadav, PW 1 in Sour Bazar State Dispensary. On the basis of his fardbayan a formal FIR was drawn up and Sour Bazar PS Case No. 167 of 1995 was registered under Secs. 341, 323, 324, 307/34 and 447 of the Indian Penal Code against the appellant, Sunder Yadav and the co-accused, Mahendra Yadav (since absconding). He visited the PO on the same day, i.e., 5-8-1995 and recorded the statements of the witnesses. The informant, Gajendra Yadav, died in Sardar Hospital, Saharsa and Saharsa Police prepared the inquest report (Ext. No. 2). Later on he handed over the charge of the investigation of this case to the handed over the charge of the investigation of this case to the Second Investigating Officer of this case, PW 5, Anand Mohan Singh, Sl of Sour Bazar Police Station. He obtained the post-mortem report (Ext. No. 3), completed the investigation and submitted charge-sheet showing the co-accused, Mahendra Yadav as abseconder. The case of the absconding co-accused, Mahendra Yadav, was separated vide order dated 19-6-1996 and the case of the accused-appellant, Sunder Yadav, was committed to the Court of Sessions. The accused-appellant was put on trial before the Additional Sessions Judge-Ill Saharsa. 4. In all the prosecution examined ten witnesses in support of its case out of them, PW 1, Dinesh Yadav, PW 2 Mukesh Kumar, and PW 3, Anmol Devi, are alleged to be the eye-witnesses to the occurrence. 5. The appellant pleaded innocence and false implication out of animosity. 6. The defence also examined two witnesses. Kameshwar Sharma, DW 1, is the Rickshaw Puller. The deceased informant was brought to Sour Bazar Hospital for treatment on his Rickshaw. DW 2, Surendra Yadav, is the full brother of the absconding co-accused, Mahendra Yadav. In addition the defence has also got the injury report of the deceased-informant, Gajendra Yadav (Ext. No. A). 7. Kameshwar Sharma, DW 1, is the Rickshaw Puller. The deceased informant was brought to Sour Bazar Hospital for treatment on his Rickshaw. DW 2, Surendra Yadav, is the full brother of the absconding co-accused, Mahendra Yadav. In addition the defence has also got the injury report of the deceased-informant, Gajendra Yadav (Ext. No. A). 7. On consideration of the evidence adduced by the prosecution learned Additional Sessions Judge III, Saharsa, found that the prosecution case had been proved beyond doubt. He convicted and sentenced the appellant as indicated above. For convicting the appellant he relied upon the evidence of the eye-witnesses, PW 1, Dinesh Yadav, PW 2, Mukesh Kumar, PW 3, Anmol Devi and the fardbayan of the informant-deceased, Gajendra Yadav (Ext. No. 1) which was treated as his dying declaration. 8. Learned Counsel for the appellant contended that the learned Additional Sessions Judge convicted and sentenced the appellant on the evidence of alleged interested related eye-witnesses, PW 1, Dinesh Yadav, PW 2, Mukesh Kumar and PW 3, Anmol Devi, who were in fact not the eye-witnesseg. These witnesses lied on material points, so no reliance ought to have been placed on their testimony. He again contended that the informant-deceased, Gajendra Yadav, was taken to PW 7 Dr. N. Prasad, the then Medical Officer Incharge of Sour Bazar Primary Health Centre in unconscious condition and remained as such there till his removal to the Saharsa Hospital for treatment. His fardbayan (Ext. No. 1) was recorded by PW4, Dinbandhu Dubey in the Primary Health Centre, Sour Bazar in presence of the Doctor/ Compounder but their no signature was obtained, so his fardbayan as dying declaration is forged and fabricated one. 9. On the other hand, learned APP contended that the informant-deceased gave his fardbayan before the PW4, Dinbandhu Dubey, the first I.O. of this case while he was mentally and physically fit to make the statement. He again contended that the conviction can be based upon the dying declaration even if there is no other corroborating evidence on the record, 10. In order to appreciate the rival contention, it appears necessary to scrutinise the evidence on record. 11. At trial the prosecution examined altogether 10 witnesses to substantiate the charge against the accused-appellant beyond reasonable doubts. He again contended that the conviction can be based upon the dying declaration even if there is no other corroborating evidence on the record, 10. In order to appreciate the rival contention, it appears necessary to scrutinise the evidence on record. 11. At trial the prosecution examined altogether 10 witnesses to substantiate the charge against the accused-appellant beyond reasonable doubts. Out of them, PW 1, Dinesh Yadav, PW2, Mukesh Kumar, the son and PW3, Anmol Devi, the wife of the deceased-informant are the eye-witnesses to the occurrence. PW 4, Dinbandhu Duby, is the first and main I.O. of this case who recorded the fardbayan of the deceased-informant (Ext. No. 1), visited the P.O. and examined the witnesses. He did not come across to any objective findings at the place of occurrence. PW 5, Anand Mohan Singh is the second I.O. of this case who simply submitted charge-sheet. PW 6, is Dr. K.S. Gupta. the then Assistant Civil Surgeon of Sadar Hospital, Saharsa, who conducted autopsy (Ext No. 3) on the dead-body of the deceased, Gajendra Yadav. PW 7 is Dr. N, Prasad, the then M.O. Incharge of Sour Bazar Primary Health Centre who.examined the deceased-informant in Sour Bazar Hospital and submitted the injury report (Ext. No. .4). PW 8 is Sunil Kumar Suman. His evidence is that the deceased informant was hospitalised in the Sadar Hospital, Saharsa, for treatment and in course of treatment he died in the hospital on 7-8-1995. The inquest report was prepared in his presence and he signed the report (Ext. No. 5). PW 9 is Jaini Yadav. He simply learnt about the occurrence from the deceased-informant, Gajendra Yadav and PW 10 is Sushila Kuamri Sinha. She has proved the Protest Petition (Ext. No. 6). 12. As stated above, PW 1, Dinesh Yadav, PW 2, Mukesh Kumar and PW 3, Anmol Devi, have claimed to be the eye-witness to the actual occurrence. The evidence of PW 1, Dinesh Yadav, is that at the relevant hour of occurrence he was at his Darwaja. The accused-appellant, Sundar Yadav, tied his buffalo in the cattle shed of the informant-deceased, Gajendra Yadav whereupon buffaloes of both started fighting with each other. The deceased-informant, Gajendra Yadav, asked the accused-appellant to take away his buffalo from his cattle shed but he did not agree. The accused-appellant, Sundar Yadav, tied his buffalo in the cattle shed of the informant-deceased, Gajendra Yadav whereupon buffaloes of both started fighting with each other. The deceased-informant, Gajendra Yadav, asked the accused-appellant to take away his buffalo from his cattle shed but he did not agree. Then the informant-deceased, Gajendra Yadav, himself went to brig out the buffalo of the appellant, Sunder Yadav from his cattle shed. The appellant, Sunder Yadav came with farsa and gave a farsa blow on his head. The co-accused, Mahendra Yadav, also came with farsa and assaulted Gajendra Yadav with farsa on the back of his neck which produced cut injuries on two fingers of his left hand. He has further stated that Anmol Devi, Mukesh Kumar, Siwan Yadav, Beni Yadav and many others witnessed the occurrence. His further evidence is that the accused persons also assaulted Gajendra Yadav with the lathi portion of farsa and then they fled away from the place of occurrence. Thereafter, Gajendra Yadav, was removed to Sour Bazar Police Station and from there to Sour Bazar Hospital for treatment. His fardbayan was recorded at Sour Bazar Police Station. Later on he was referred to Sadar Hospital, Saharsa for treatment. In cross-examination his evidence is that there was a perused bleeding from the injured portion of the deceased-informant, Gajendra Yadav and the blood had also fallen on the ground. His further evidence is that the wife and son of the deceased-informant were not seeing the occurrence from the alleged place. They were inside the Aangan and on the outcry of the deceased-informant, they came out of the Aangan. He has specifically stated that the deceased raised alarm after the occurrence of assault. The evidence of other two eye-witnesses, PW 2, Mukesh Kumar, the son and PW3, Anmol Devi, the wife of the deceased, Gajendra Yadav, is that at the alleged time they were at the Darwaja and had seen the entire occurrence. They have given the Vivid account of the occurrence. In cross-examination, PW2, Mukesh Kumar, has stated that on the alleged date the accused-appellant, Sunder Yadav, had for the first time tied his buffalo in his cattle shed and the blood had fallen in the cattle shed. PW 3, Anmol Devi, in her cross-examination has deposed that the accused-appellant had also his cattle shed adjacent south of her cattle shed at a distance of one yard. PW 3, Anmol Devi, in her cross-examination has deposed that the accused-appellant had also his cattle shed adjacent south of her cattle shed at a distance of one yard. She has further stated that she was present in her cattle shed from before the occurrence and her deceased-husband was in the Aangan. When buffaloes of both started fighting she called out her husband from the Angan. There was violent altercation in between her husband and the accused persons whereupon the accused persons brought farsa from the Aangan. She has further stated that her son was also present there but they were not assaulted by the accused persons. Her further evidence is that on her outcry people came at the place after the occurrence of assault. Her husband became unconscious. The assembled persons also saw the occurrence and she had not narrated to them about the incidence. She has further stated that at the police station the Officer Incharge obtained T.I. on a paper and at that time her husband was in position to speak. The condition of her husband was serious, so after remaining one hour at Sour Bazar they went to Saharsa Hospital. Her husband was admitted in the Saharsa Hospital and on the following day he died. 13. An appraisal of the evidence of the alleged three eye-witnesses, PW 1, Dinesh Yadav, PW 2, Mukesh Kumar and PW 3, Anmol Devi, reveals that they have contradicted each other on material points and had not seen the actual occurrence of assault on the informant-deceased; Gajendra Yadav, at the hands of the accused appellant, Sunder Yadav and have given tutored statements in course of trial. The evidence of PW 2, Mukesh Kumar and PW 3, Anmol Devi, indicates that while they were at Darwaja, they witnesses the entire occurrence, but the evidence of PW 1, Dinesh Yadav, suggests otherwise. According to him, the wife and the son of the deceased-informant (PW 2 and PW 30 were not seeing the occurrence from the alleged place of occurrence. At the relevant time they were inside the Aangan and on the outcry of the deceased-informant they came out of the Aangan. He has clearly stated that the deceased-informant raised alarm after the occurrence of assault. Further the fardbayan of the deceased-informant, Ext. 1, gives a death blow to their testimony. Ext. At the relevant time they were inside the Aangan and on the outcry of the deceased-informant they came out of the Aangan. He has clearly stated that the deceased-informant raised alarm after the occurrence of assault. Further the fardbayan of the deceased-informant, Ext. 1, gives a death blow to their testimony. Ext. 1 the fardbayan, speaks clearly on this point that soon after the occurrence the wife of the informant came, and noticing his condition started weeping, raised halla. Her alarm attracted witness, Dinesh Yadav, PW 1, and many other villagers and then the accused persons made good escape from there. Thereafter, Dinesh Yadav, PW 1, removed the deceased-informant on Rickshaw of Kameshwar Sharma, D.W. 1, to the State Dispensary, Sour Bazar, for treatment. Thus, the evidence of three alleged eye-witnesses does not inspire confidence to rely upon their testimony for the purpose of conviction of the appellant. 14. This being the position the fardbayan of the informant-deceased, Gajendra Yadav (Ext. No. 1) remains the only evidence to prove the prosecution case. The fardbayan (Ext. No. 1) recorded by the then A.S.I. of Sour Bazar Police Station, PW 4, Dinbandhu Dubey, on 5-8-1995 at 10.45 a.m. in Sour Bazar State Dispensary is left to be treated as dying declaration after the death of the informant-deceased, Gajendra Yadav, because he disclosed the cause of his death and the manner in which he sustained injuries. The settled principle of law is that the dying declaration is a substantive piece of evidence and can form the basis of the order of conviction if the Court is satisfied that the so-called dying declaration was voluntary and reliable and the author recorded the dying declaration as disclosed by the deceased. The Apex Court has laid down the principle on this point that for relying upon the dying declaration the Court must be cautious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was mentally and physically fit to make such dying declaration. 15. In the present case, the occurrence of assault on the informant-deceased, Gajendra Yadav, took place on 5-8-1995 at 8 a.m. and on the same day in the injured condition he was removed to Sour Bazar State Dispensary for treatment on the Rickshaw of DW1, Kameshwar Sharma. 15. In the present case, the occurrence of assault on the informant-deceased, Gajendra Yadav, took place on 5-8-1995 at 8 a.m. and on the same day in the injured condition he was removed to Sour Bazar State Dispensary for treatment on the Rickshaw of DW1, Kameshwar Sharma. PW4, Dinbandhu Dubey, the A.S.I, attached with Sour Bazar Police Station found the deceased-informant, Gajendra Yadav, in fit condition to give statement and so he recorded his so-called dying declaration in the Sour Bazar State Dispensary. It is also the admission of PW 4, Dinbandhu Dubey, that at that time the Doctor and Compounder were available in the Hospital but surprisingly the Doctor was not called to testify if at all. The deceased was in fit condition to make dying declaration, From Sour Bazar State Dispensary he was removed to Saharsa Hospital and in course of treatment he died there on 7-8-1995. 16. PW7, Dr. Nripendra Prasad, examined the deceased-informant on 5-8-1995 at 11.45 a.m. in Sour Bazar Primary Health Centre and found the following injuries on his person : (i) One lacerated wound over the parietal area measuring 3" x 1/4" x Scalp deep. (ii) One lacerated wound over the left index finger, proximal end measuring 1/2" x 1/4" x 1/4". (iii) One bruise over the right shoulder joint measuring 3" x 1/2". According to him the deceased was attended in the out patient department in unconscious condition with meningeal irritation. Pupil of right eye was dilated and was not reacting to light. He referred the deceased-patient to the Sadar Hospital, Saharsa. In his opinion the injuries were caused by hard and blunt substance above six hours at the time of examination. Out of the three injuries, injury No. 1 was grievous in nature and rest were simple in nature. He proved the injury report (Ext. No. 4). In cross-examination he has stated that the injured was brought to him unconscious and he was never conscious. He failed to say from when before the injured was unconscious. 17. PW 6, Dr. K.S. Gupta, Civil Assistant Surgeon, Sadar Hospital, Saharsa, conducted post-mortem examination on the dead-body of the deceased, Gajendra Yadav, on 7-8-1995 at 12.00 Noon and found the following external injuries on his person : (i) Bruise measuring 2" x 2" on back of left elbow. He failed to say from when before the injured was unconscious. 17. PW 6, Dr. K.S. Gupta, Civil Assistant Surgeon, Sadar Hospital, Saharsa, conducted post-mortem examination on the dead-body of the deceased, Gajendra Yadav, on 7-8-1995 at 12.00 Noon and found the following external injuries on his person : (i) Bruise measuring 2" x 2" on back of left elbow. (ii) Multiple long bruises on back of right shoulder and over shoulder blade, (iii) Sutured entero-posterior direted lacerated wound measuring 3" x bone deep on the left side of vortex. (iv) Sutured wound measuring 1/2" x scalp deep on back of head with 1" round surrounding bruise. (v) Laceration of tip of left fore finger On dissection, PW 6 found 5" x 4" long communicated fracture of left parietal bond. He further found subdural haemmatoma and laceration of left parietal lobe or brain in the area of 2" x 2". In his opinion the death was caused due to shock on a count of above noted ante-mortem injury on head leading to laceration of brain and within 12 hours of holding the post-mortem report. He opined that the injuries were caused by hard and blunt object. According to him the injury No. (iv) was dangerous to life in ordinary course of nature. He proved the post-mortem report (Ext. No. 3). 18. Admittedly, the deceased-informant, Gajendra Yadav, sustained injuries at 8 a.m. on 5-8-1995 and PW4, A.S.I., Dinbandhu Dubey, recorded his fardbayan (Ext. No. 1) which is being treated as dying declaration on the same day at 10.45 a.m. just within three hours of the occurrence. It appears from the injury report (Ext. No. 4) that the deceased-informant was treated in the State Dispensary, Sour Bazar by Dr. Nripendra Prasad, PW 7 and he found him in unconscious condition. This indicates that condition of the deceased-informant was serious and he was not in position to speak in view of the evidence of PW 7, as such it was obligatory on the part of author of dying declaration PW4, Dinbandhu Dubey, to call the Doctor present in the Hospital to testify if deceased-informant was in fit condition to make statement and obtain a certificate to that extent from him. Unfortunately, PW4, Dinbandhu Dubey, neither attempted to consult the Doctor or Compounder nor to obtain requisite certificate. Unfortunately, PW4, Dinbandhu Dubey, neither attempted to consult the Doctor or Compounder nor to obtain requisite certificate. PW 1, Dinesh Yadav and PW 2, Mukesh Kumar, have not whispered even a single word about the mental and physical condition of the deceased-informant, Gajendra Yadav. PW 3, Anmol Devi, has come forward to state in her cross-examination that her husband fell down after assault and became unconscious but in the same breath she has stated that he was in position to speak with difficulty. It further appears that the informant-deceased, Gajendra Yadav, was removed to Sour Bazar State Dispensary for treatment on the Rickshaw of Kameshwar Sharma. Unfortunately, Kameshwar Sharma, has not been examined as prosecution witness, rather he has been examined as defence witness, DW 1. His evidence is that he took Gajendra Yadav to Sour Bazar Police Station on his Rickshaw and he was in unconscious condition. 19. For the reasons discussed above, the so-called dying declaration recorded by PW 4, Dinbandhu Dubey, in the State Dispensary, Sour Bazar, is not acceptable and if the dying declaration is not accepted then there is no evidence to convict the appellant. This being the position judgment of conviction and sentence under appeal cannot be upheld. 20. In the result, this appeal is allowed. The order of conviction and sentence recorded by the learned trial Judge against the appellant is set aside. The appellant, Sunder Yadav, who is in jail custody shall be released immediately if not required in any other case. 21. A.K. Sinha, J. I agree.