JUDGMENT : B. Panigrahi, J. - This appeal by the State assails the order dated 23.09.1985 passed by the learned Sessions Judge, Mayurbhanj, Baripada in Sessions Trial No. 73 of 1984 whereby the respondent has been acquitted of the charge u/s 302, IPC. 2. The skeletal picture of the prosecution story as narrated in the trial Court's judgment is as follows: Between the night of 27th and 28th May, 1984 while the deceased Baidhar Nayak and his wife (P.W.2) were sleeping on the verandah of their house whereas their daughter Sambari (P.W.1) and her brothers were sleeping in a room quite close to the verandah, the respondent is said to have caused knife injury on the abdomen of the deceased as a result of which he suffered severe penetrating injury. At that juncture, the deceased Baidhar raised a shrilled cry as a result of which P.W.2, his wife immediately woke up followed by P.W.1 and saw the respondent running away with the knife in his hand with the light of a dibri, which was burning at the scene of occurrence. It is the further case of the prosecution that at about 9.00 P.M. P.W.2 slept with her husband on the verandah and her daughter (P.W.1) along with her sons slept inside the room. P.Ws.1 and 2 woke up by hearing the groaning sound raised by the deceased Baidhar and found respondent going away from the verandah with a knife in his hand. The deceased Baidhar had received severe penetrating bleeding would on his abdomen. Therefore, his daughter P.W.1 rushed to the other villagers for help to shift the injured to the hospital. P.W.5, the brother of the deceased who was the informant in this case, on being informed by P.W.1 rushed to the place of occurrence. P.W.1 also narrated to P.W.5 that it was the respondent Raghu who caused the,murderous blow on her father. Subsequently, the other villagers too gathered near the house of P.W.2. The injured was shifted to Bisoi Hospital which was hardly a kilometre away from his village. The Medical Officer who was on duty immediately informed the police about the incident that it was a medico-legal case. On being informed by the Medical Officer, the O.I.C. Bisoi Police Station also rushed to the P.H.C. As the condition of the injured Baidhar deteriorated gradually, the doctor who was on duty recorded his dying declaration. The Medical Officer who was on duty immediately informed the police about the incident that it was a medico-legal case. On being informed by the Medical Officer, the O.I.C. Bisoi Police Station also rushed to the P.H.C. As the condition of the injured Baidhar deteriorated gradually, the doctor who was on duty recorded his dying declaration. Subsequently Baidhar succumbed to the injuries at 2.30 A.M. in the hospital. At the outset a case was registered u/s 326, IPC, but after the injured died at the hospital, it was converted into a case of murder u/s 302, IPC. After arrival of the police at the hospital, P.W.5 submitted a written report which was registered as P.S. Case No. 33 of 1984 and the O.I.C. Bisoi Police Station proceeded with the investigation of the case. He held inquest over the dead body, examined witnesses, sent the dead-body of post mortem examination, collected the dying declaration recorded by the Medical Officer, visited the spot, arrested the accused. The knife stated to have been produced by the respondent while in police custody was also seized u/s 27 of the Evidence Act. On closure of investigation, charge-sheet was placed against the respondent u/s 302, IPC. 3. The prosecution had examined 9 witnesses in order to sustain conviction against the respondent. The trial Court after discussing the evidence of the prosecution has however recorded an order of acquittal of the accused. Therefore, the State has filed this appeal challenging the order of acquittal. 4. Mr. Mohanty, learned Additional Government Advocate has contended with strong intensity of conviction that the order of acquittal passed by the Court below does not at all pass the legal test particularly in presence of plenty of evidence produced by the prosecution. It has been further submitted that the learned trial Judge should not have lightly brushed aside the evidence of the relations of the deceased, who claimed to have seen the respondent at the place of incident. Emphasis was laid on the evidence of P.Ws.1 and 2 that they had seen the respondent running away from the spot with the help of light emitted from the Dibiri. Non-seizure of Dibiri does not however improbablise the prosecution story when there are other abundant evidence to establish that the respondent was the author of the crime. Emphasis was laid on the evidence of P.Ws.1 and 2 that they had seen the respondent running away from the spot with the help of light emitted from the Dibiri. Non-seizure of Dibiri does not however improbablise the prosecution story when there are other abundant evidence to establish that the respondent was the author of the crime. P.Ws.1 and 2 are none other than the daughter and wife of the deceased, who ordinarily who not commit any mistake in identifying the accused in the night of occurrence. It was high-lighted that the house of the accused-respondent was situated one house apart from the deceased. Therefore, they knew the accused-respondent before hand. He also contended that the learned trial Court should not have over emphasized on the question of motive. In a criminal case motive is inconsequential when there was been direct evidence with regard to the participation of the assailant. In this case, the evidence of P.Ws.1 and 2 as embodied in the record would unmistakably reveal that the accused respondent was clad by a half pant and a sleeveless banian which were seized on the following date of the occurrence from the person of the accused respondent. There were two dying declarations allegedly made by the deceased, one before P.Ws.1, 2, 5 and 6 and the other before the Medical Officer. The learned trial Court should not have rejected both the dying declarations looking into the injuries of the deceased. 5. Mr. Senapati, learned Counsel appearing for the respondent while supporting the judgment has strenuously contended that this Court in a case of acquittal ordinarily should not interfere with the findings of the learned trial Court. If two views are possible, the view taken by the trial Court should ordinarily be respected. After a closer study of the evidence placed before the learned trial Judge, he has disbelieved those witnesses. Thus in the aforesaid situation, it shall normally to be permissible for the appellate Court, particularly in a case of acquittal of the accused to reappraise the evidence and come to a contrary conclusion. The 'Dibiri' which was taken as an instrument to identify the respondent having not been seized, the learned trial Judge viewed the evidence of P.Ws.1 and 2 with suspicion. Thus, the findings of the trial Court should not be lightly brushed aside. The 'Dibiri' which was taken as an instrument to identify the respondent having not been seized, the learned trial Judge viewed the evidence of P.Ws.1 and 2 with suspicion. Thus, the findings of the trial Court should not be lightly brushed aside. The unnatural and unrealistic evidence of the prosecution witnesses was also taken note of by the trial Court. Thus, the appellate Court should not adopt a different standard while evaluating their evidence. The so-called dying declaration is incredible and unbelievable. Thus, the trial Court rejected the version of P.Ws.1, 2 and 7. Even though the knife, which is said to be the weapon of offence was seized it did not contain any incriminating substance so as to connect the same with the crime. Therefore, the prosecution cannot rely on the seizure of the knife, assuming it was recovered at the instance the respondent while in custody. He reminded us about the powers of the appellate Court while hearing an order of acquittal and relied upon a judgment of the Supreme Court in Tota Singh and Another Vs. State of Punjab wherein it has been held that the jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order or acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Our attention has been invited to a recent judgment of the Supreme Court in Betal Singh Vs. State of M.P. it has been held as follows: It is well settled that the High Court's power in disposing of appeals from conviction or acquittal are essentially the same. It is equally well settled that where the credibility of the evidence depends upon factors other than the demeanour of witnesses, the appellate Court is free to come to its own conclusions as to the credibility. But at the same time if the view taken by the Trial Court in acquitting the accused is not palpably wrong there would be no occasion for reversal of the order of acquittal. But at the same time if the view taken by the Trial Court in acquitting the accused is not palpably wrong there would be no occasion for reversal of the order of acquittal. Further the High Court should also consider the reasons advanced by the Trial Court before altering the order of acquittal to order of conviction, xxxx. 6. Keeping the aforesaid in mind, let us advert to the evidence produced before the trial Court. P.W.2 was none other than the wife of the deceased Baidhar. On a close study of her testimony, it is revealed that in the night of occurrence after taking their dinner, she slept on the verandah along with her husband which was close to the room where her three children were sleeping. She was aroused from her sleep by the outcry raised by her husband that the accused-respondent had assaulted him. At that time, the door was kept ajar and the 'Dibiri' was burning in between. Immediately after she woke up, she noticed that Raghu was escaping by holding a knife. She also found that her husband had received two bleeding injuries on his abdomen. P.W.1 who was her daughter also simultaneously reached there and found the respondent going away with the knife. P.W.1 in quick succession proceeded to call P.Ws.5 and 6 and D.W.2. On examining the evidence of P.W.1, we found that her statement in all material particulars lends assurance to the evidence of P.W.2. She also testified that in the night of occurrence by hearing the scream raised by her father, she rushed to the verandah and noticed the respondent going away with the knife. Her mother also saw the respondent going away. P.Ws.1 and 2 had fully identified the dress worn by the accused-respondent. P.W.1 went to call P.Ws. 5 and 6. On their arrival, Fakir (P.W.5) the brother of the deceased made a query as to who was the assailant to which the deceased replied that it was the respondent Raghu. P.W.5 wrapped a napkin around the wound. Both P.Ws.1 and 2 noticed that there were two injuries on the abdomen of Baidhar. P.Ws.1 and 2 had identified the half pant and the banian belonging to the respondent which were put on by the respondent at the time of incident and also the knife (M.O.III) held by him. P.W.5 wrapped a napkin around the wound. Both P.Ws.1 and 2 noticed that there were two injuries on the abdomen of Baidhar. P.Ws.1 and 2 had identified the half pant and the banian belonging to the respondent which were put on by the respondent at the time of incident and also the knife (M.O.III) held by him. The injured was shifted to Bisoi Hospital, which was hardly a kilometre away from their village. Though his father was groaning, but he was able to talk. 7. In the past there was a case u/s 107, Code of Criminal Procedure. but they were not sure whether that was the ground for which the respondent has caused such dastardly act. In commission of a crime, motive is of no consequence. It can only be known to the killer as to way he committed such grisly murder. Merely because the prosecution was not able to produce a clinching evidence with regard to motive, for that reason alone, the assailant cannot claim that no case has been established against him. 8. The prime question which arises for our consideration is whether due to non-seizure of 'Dibiri' the credibility of the evidence of P.Ws. 1 and 2 should be viewed with suspicion. In other words, their evidence should therefore, be ignored. It is true that the 'Dibiri' was not seized by the I.O., P.W.9. He has answered to a question raised by the defence that since the Dibiri was not produced by the inmates, he did not effect seizure. An identical question was considered by the Supreme Court in State of Orissa v. Dibakar Naik and Ors. (2002) 22 OCR (SC) 734, in which the apex Court held: Regarding non-seizure of the torchlight, used by the witness to see the occurrence, it was held in Balo Yadav and others Vs. State of Bihar that such an omission cannot be considered as a lapse on the part of any investigating officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case. To strengthen our view, we further rely upon a judgment of the Supreme Court in Shankar Mahto and Another with Hari Lal Mahto and Others Vs. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case. To strengthen our view, we further rely upon a judgment of the Supreme Court in Shankar Mahto and Another with Hari Lal Mahto and Others Vs. State of Bihar wherein their Lordships have observed: Mr. Shambhu Prasad Singh, learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 195 of 2001 while adopting the submissions of the learned amicus, made a further submission that identification of the appellants was highly doubtful as there was no source of identification. In our view, the submission has been made only to be rejected. Firstly, it would be impermissible for this Court to go into the merits of this point and reconsider the same as by rejection of SLP filed by accused Shrilal Sharma and Haro Sharma, who were the main accused in this case and whose convictions have been upheld, the same would be deemed to have been rejected. Apart from that P.Ws.2, 4 and 6 have consistently stated in their evidence that it was a moonlit night. The appellants were undisputedly known to members of the prosecution party from before as such their identification by P.Ws.2, 4 and 6 in the moonlit night was quite possible. Moreover, according to the prosecution case and the evidence of P.Ws.2, 4 and 6, in the winter night when the accused persons arrived at the house of the informant, she along with the three deceased persons and children of her family was sitting near the fire which was burning at the outer door of her house. Therefore, otherwise also there could not have been any difficulty in identifying the appellants in the light of the fire as well. This being the position, we do not find any substance in the submission of the learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 195 of 2001. 9. If the testimony of P.W.2 is otherwise unimpeachable in nature, mere non-seizure of Dibiri will not altogether improbablise the prosecution case. It was the duty of the I.O. to find out the Dibiri since P.Ws.1 and 2 and other witnesses too claimed that there was a Dibiri burning at the scene of occurrence. 9. If the testimony of P.W.2 is otherwise unimpeachable in nature, mere non-seizure of Dibiri will not altogether improbablise the prosecution case. It was the duty of the I.O. to find out the Dibiri since P.Ws.1 and 2 and other witnesses too claimed that there was a Dibiri burning at the scene of occurrence. Due to the fault in the investigation, no benefit can be given to the accused. Therefore, the I.O. should have been more vigilant and careful while dealing with the investigation of a heinous crime like murder. Thus, on account of the lapses committed by the I.O. the case of the prosecution should not be thrown over board. 10. It is true that the prosecution has mainly relied upon the evidence of P.Ws.1, 2, 5 and 6. P.Ws.1 and 2 were closely related to the deceased. They shall never make any attempt to see the real culprit escape and other innocent persons implicated in the case. There was no glaring instance pointed out by the defence to reject their testimony, rather their testimony gains substantial support from the medical evidence, inasmuch as P.W.7 who had examined the deceased has noted two injuries on the abdomen. The Medical evidence also substantially corroborates the ocular evidence of P.Ws.1, 2, 5 and 6. 11. On a careful study of the judgment assailed before us, we find Anr. ground which influenced the mind of the trial Court was that even though all the prosecution witnesses were present at the scene of occurrence, why had they failed to apprehend the accused immediately after the incident. But we find that the approach of the trial Court was unrealistic and un-natural, inasmuch as immediately after the incident, the witnesses who assembled at the house of P.W.2 were engaged in shifting the injured to the hospital in order to save his life. Thus, non-apprehension of the respondent in the night of occurrence cannot be a ground to presume his innocence, if, his guilt is otherwise proved by unimpeachable evidence. 12. P.W.5 is the informant in this case. From his evidence, the prosecution has established that he reached at the scene of the occurrence within a few minutes on being called by P.W.1. He had also found P.W.6, D.W.3, Bhima Nayak and Ors. present at the spot. By that time P.W.2 was pressing the wounds to control the blood. 12. P.W.5 is the informant in this case. From his evidence, the prosecution has established that he reached at the scene of the occurrence within a few minutes on being called by P.W.1. He had also found P.W.6, D.W.3, Bhima Nayak and Ors. present at the spot. By that time P.W.2 was pressing the wounds to control the blood. The injured Baidhar was then groaning with agonising pain. It is normally expected for a brother to ask the injured as to who was his assailant. Therefore, out of his own anxiety, he enquired from the deceased as to who was his assailant, to which the latter replied that it was the respondent who inflicted such penetrating wound. Immediately thereafter, the injured Baidhar was taken to the hospital. P.W.7 was then on duty, who not only sent information to the police that it was a medicolegal case, but also recorded the dying declaration without wasting any time. By that time the patient was conscious. So far as the oral dying declaration of the deceased stated to have been given out in presence of P.Ws.1, 2, 5 and 6, is concerned, it is no doubt true that they were relations of the deceased, but that by itself cannot not be a ground to discard the oral dying declaration if it is otherwise credible. Apart from the dying declaration, the evidence of P.Ws.1 and 2 had unmistakably revealed that they had seen the respondent going away with the knife immediately after giving blows on the abdomen of the deceased Baidhar. To further corroborate such evidence P.Ws. 5 and 6 have stated that they heard the dying declaration uttered by the deceased on the query made by P.W.5. It is aghast to note that the trial Court has not at all discussed the oral dying declaration, let alone its credibility. 13. Now, turning to the evidence of P.W.7, the Medical Officer of Bisoi Hospital, on examination of the injured Baidhar, he found the following injuries: (1) Injury No 1 length 2" x 1/2" x depth towards abdominal cavity. On the mid line of the abdominal well above 1" umbilicus. (2) Stab injury 2" x 1/2" x depth towards abdominal cavity. About 2" towards left of the first injury. At the time when P.W.7 examined the injured, he was able to talk. On the mid line of the abdominal well above 1" umbilicus. (2) Stab injury 2" x 1/2" x depth towards abdominal cavity. About 2" towards left of the first injury. At the time when P.W.7 examined the injured, he was able to talk. As the injured was leading towards restlessness, P.W.7 felt it necessary to record his dying declaration and accordingly put questions, to which the patient rationally answered about his assailant. The trial Court has disbelieved the dying declaration said to have been made by the deceased and recorded by the doctor on the ground that since he was sleeping at time of putting LTI, the dying declaration is, therefore, shrouded with suspicion. To examine the correctness of the observation, we went through Ext. 8, the dying declaration made by the deceased. The said dying declaration was recorded in presence of P.W.6 and the Pharmacist of the Bisoi Hospital. The pharmacist also signed on the said dying declaration. P.W.7 has recorded that the patient was becoming more and more restless. Therefore, he felt it necessary to immediately record his dying declaration. But that itself cannot be a ground to discard the dying declaration recorded by the doctor. In this regard, we rely on a judgment in Jose and Others Vs. State of Kerala wherein it has been held as follows: We have examined the reasons given by the trial Court and we find that the learned Sessions Judge discarded Ext. P. 13 on a comparison with the contents of Ex.P. 22 which is not correct. In any event, the dying declaration Ext. P. 13 is amply corroborated by the evidence of P.W.3 so far as the presence and participation of A-1 and A-3 in the crime are concerned. 15. Mr. Senapati, learned Counsel appearing for the respondent has however critically placed the evidence of P.W.2 and wanted us to disbelieve the dying declaration recorded by P.W.7. P.W.2, the wife of the deceased, had claimed that her husband did not put his thumb impression, but the dying declaration did contain the thumb impression of the deceased Therefore, the said statement is not free from suspicion. However, we find apart from the dying declaration said to have been recorded by P.W. 7 there are other ample evidence which unmistakably establishes the guilt of the accused-respondent. However, we find apart from the dying declaration said to have been recorded by P.W. 7 there are other ample evidence which unmistakably establishes the guilt of the accused-respondent. Therefore, the dying declaration, which was recorded by P.W.7 within hours of occurrence, appears to be truthful and can be treated as corroborative evidence. From the nature and type of injuries received by the deceased, we are of the opinion that a person with such type of injuries shall not instantaneously meet his end, but will survive for some time. From the evidence of P.W.8 it has been established that patient receiving such type of injuries may survive for 2-3 hours and a person addicted to liquor may survive one hour more. Therefore, on a combined reading of the evidence of P.Ws.1, 2, 5, 6, 7, and 8 it has been firmly established by the prosecution that it was the respondent, who was the perpetrator of the crime. 16. The knife had been seized u/s 27 of the Evidence Act while the respondent was in custody in presence of P.W.3. It is true that the knife did not contain any incriminating substances like blood as per the Serologist's report. Since there are ample evidence, even if the seizure of the knife is excluded from our consideration, it will not affect the prosecution case as the prosecution has proved its case by producing reliable, credible and unimpeachable evidence. 17. Thus, considering the appeal from any angle, we find that the learned Sessions Judge had not at all taken any pains to evaluate the evidence in proper perspective, resulting in miscarriage of justice. Accordingly, we set aside the observation and findings of the learned Sessions Judge in recording an order of acquittal. 18. In the result, the appeal is allowed and the order of acquittal of the respondent is set aside. He is found guilty to have committed the offence of murder of Baidhar, convicted u/s 302, IPC and sentenced to undergo imprisonment for life. The bail bond furnished by the respondent be cancelled and he be taken into custody by executing warrant of arrest. P.K. Misra, J. 19. I agree.