JUDGMENT - BATTA R.K., J.:---The appellant was tried for murder of Madhukar Dudhpachare under section 302 of the Indian Penal Code. The prosecution had in all examined ten witnesses in support of the charge. The trial Court vide impugned judgment, which is subject-matter of challenge in this appeal, found the appellant guilty for the said charge and sentenced him to suffer imprisonment for life and fine of Rs. 500/- in default R.I. for two months. The appellant was in custody from 15-12-1992 till 22-04-1993 and benefits of the same in accordance with section 428 of Cri.P.C. was given to the appellant. 2. The prosecution case, in brief, is that on 15-12-1992 at about 6.00 p.m. at Old Mangalwari, Nagpur, deceased Madhukar was sitting along with his friend and at that time the appellant came there and assaulted deceased Madhukar with spear head on his chest. The appellant ran away from the spot after assaulting the deceased. The deceased was admitted to Mayo Hospital where his statement was recorded by Head Constable Baburao (P.W. 8) who was present there on duty. Head Constable Baburao gave requisition to the doctor making enquiry as to whether the injured Madhukar was in a position to give statement. The doctor examined the injured Madhukar and made endorsement on the requisition that the patient was fit to give statement. Thereafter, Head Constable Baburao (P.W. 8) recorded the statement of the injured Madhukar and he proved the statement recorded by him. He had obtained thumb impression of the injured Madhukar on the same. Thereafter, he informed Lakadganj Police Station on phone and the investigation into the crime was taken up. The spear head was seized from the appellant and it was found to be stained with blood. After completing the investigation, the appellant was tried for murder of Madhukar Dudhpachare who had died on 18-12-1992. The defence is of total denial. 3. Learned Advocate for the appellant submitted before us that both the panchas (P.W. 1) and (P.W. 2) were declared hostile and nothing material could be elicited by the prosecution during cross-examination. He also pointed out that three other witnesses, namely P.W. 3, Chandrashekhar, P.W. 5, Madhukar Gadikar and P.W. 7, Kamal were declared hostile by the prosecution. 3. Learned Advocate for the appellant submitted before us that both the panchas (P.W. 1) and (P.W. 2) were declared hostile and nothing material could be elicited by the prosecution during cross-examination. He also pointed out that three other witnesses, namely P.W. 3, Chandrashekhar, P.W. 5, Madhukar Gadikar and P.W. 7, Kamal were declared hostile by the prosecution. Relying upon the judgment of Division Bench of this Court in (Rambhau Kashinath Waibhat and another v. State of Maharashtra)1, reported in 1998 Bom.C.R.(Cri) (A.B.)625 , it was argued that the evidence of the hostile witnesses cannot be relied upon. In respect of hostile witness P.W. 3, Chandrashekhar, it was submitted that the statement of this witness was recorded by the police after five days of the incident and in view of the same and more so because the witness was declared hostile no reliance whatsoever can be placed on his testimony. In so far as evidence of P.W. 5, Madhukar Gadikar is concerned, it is urged that this witness has admitted that he has not stated as per portion marked "A" and portion marked "B" before the police on account of which his testimony cannot be relied upon. In respect of hostile witness P.W. 7, Kamal, it was urged that the presence of this witness is not spoken by anyone. In respect of P.W. 4, Sitabai also, it is urged that according to her she had gone to Gokulpeth on the date of incident which is about 12 kms. away from the place of incident and she admits to have returned at 8.00 p.m. whereas the incident took place at 6.00 p.m. and as such it is crystal clear that she was not present at the time of the incident and has not seen the same. 4. away from the place of incident and she admits to have returned at 8.00 p.m. whereas the incident took place at 6.00 p.m. and as such it is crystal clear that she was not present at the time of the incident and has not seen the same. 4. In respect of the statement recorded by Head Constable Baburao, which is sought to be used by the prosecution as dying declaration, it is urged that the said statement cannot be relied upon for various reasons including that the statement is not attested by the doctor, the statement was not read over, explained and admitted by the deceased; that the statement does not relate to cause of death of maker and since the same was not recorded in the judicial proceedings, it is not admissible and that the statement recorded by the Police Officer cannot be relied upon until and unless corroborated by other evidence on record. In support of these submissions, reliance has been placed on (Ratan Gond v. State of Bihar)2, reported in A.I.R. 1959 S.C. 18; (Dalip Singh and others v. State of Punjab)3, reported in A.I.R. 1979 S.C. 1173; (Mohan Singh and others v. State of Punjab)4, reported in A.I.R. 1981 S.C. 1578; (Manohar Dadarao Landge v. State of Maharashtra)5, reported in 1999(Supp.) Bom.C.R. (A.B.)215; (Shyamrao Vitthal Poiemwar v. State of Maharashtra)6, reported in 2002 Bom.C.R.(Cri.) (N.B.)42 and (Bablya alias Ramesh Shankar Yarpude v. State of Maharashtra)7, reported in 2003 Bom.C.R.(Cri.) (N.B.)174 In view of the above, it is argued that the prosecution has not been able to establish the charge against the appellant since the evidence of the hostile witnesses and the dying declaration recorded by the Police Officer is not corroborated by other evidence on record. He, therefore, contends that the appellant be acquitted of the charge. 5. Learned A.P.P., on the other hand, urged before us that it is no doubt true that three eye-witnesses had initially turned hostile to the prosecution, but when they were cross-examined with the permission of the Court, the said witnesses have supported the prosecution case and during further cross- examination by the defence, the said witnesses could not be discredited. He, therefore, contends that the evidence of the said witnesses cannot be discarded. He, therefore, contends that the evidence of the said witnesses cannot be discarded. After placing reliance upon (Balu Sonba Shinde v. State of Maharashtra)8, reported in 2002(7) S.C.C. 543 , it is urged that the declaration of witness to be hostile is not ipso facto sufficient to reject the testimony of the witness and the portion of the evidence which is being advantageous to the parties including prosecution and defence may be taken advantage by the said parties but the Court has to be extremely cautious and circumspect in accepting the evidence of such hostile witnesses. On the question of doctors certification as to mental fitness of the declarant, reliance is placed on the judgment of the Constitution Bench of the Apex Court in (Laxman v. State of Maharashtra)9, reported in 2003 Bom.C.R.(Cri.) (S.C.)161 . On the question of recording of the dying declaration by the Police Officer, reliance is placed on (State of Karnataka v. Shariff)10, reported in 2003 All.M.R.(Cri.) 556(S.C.) which lays down that there is no requirement of law that dying declaration must necessarily be made to the Magistrate. Therefore, dying declaration though recorded by the police personnel cannot be discarded on that ground. According to learned A.P.P. the evidence of prosecution witnesses P.W. 3, Chandrashekhar, P.W. 4 Sitabai, P.W. 5 Madhukar Gadikar, P.W. 6 Babanrao, P.W. 7 Kamal, P.W. 8 Baburao and P.W. 10 Dr. Ambadas proves the prosecution case beyond any iota of doubt and the finding of the trial Court holding the appellant guilty on the basis of the said evidence does not call for any interference whatsoever. 6. We have scrutinised the evidence in the light of the submissions made by learned Advocate for the appellant and learned A.P.P. as also the rulings upon which reliance has been placed by them. We shall, therefore, now scrutinise the evidence on record bearing in mind the principles of assessment of evidence. 7. We shall first take up the evidence of the eye-witnesses. Some of whom had not initially supported the prosecution case as a result of which learned A.P.P. was allowed to put questions in the nature of cross-examination and in the course of cross-examination they have supported the prosecution case. Before scrutinising the evidence of said witnesses, it is necessary to refer to the position of law relating to the evidentiary value of such witnesses. Before scrutinising the evidence of said witnesses, it is necessary to refer to the position of law relating to the evidentiary value of such witnesses. In this respect, learned Advocate for the appellant has placed reliance on judgment of Division Bench of this Court in Rambhau Kashinath Waibhat and another v. State of Maharashtra (supra). Learned A.P.P. on the other hand, has relied upon the judgment of this Court in (Suresh s/o Hidaku Meshram v. State of Maharashtra)11, reported in 2002(Cri. Supp.) Bom.C.R. (N.B.)469. 8. The Division Bench in Rambhau Kashinath Waibhat and another v. State of Maharashtra (supra) has observed that, merely because a witness is declared hostile, his evidence cannot be rejected on that ground alone. However, the evidence of such witness requires corroboration from some independent source. In other words, the evidence of a hostile witness may not be rejected outright, but the Court has at least to be aware that prima facie if a witness is found to have made different statement at different stages, he must be having no regard for truth. Accordingly, the rule of prudence requires that if a hostile witness is thoroughly discredited witness, whole of his testimony should be rejected. This ruling as we shall demonstrate at later stage, does not in any manner help the case of the appellant since the witnesses who are declared hostile have not been discredited at all though cross-examined by the defence. 9. The Division Bench of this Court in Suresh s/o Hidaku Meshram v. State of Maharashtra (supra) has held that such part of testimony of hostile witness which appears to be credit worthy will have to be believed and there is no bar to base conviction upon the testimony of hostile witness if it is corroborated by other evidence. Evidence of hostile witnesses cannot be rejected in totality. For the aforesaid proposition, the Division Bench of this Court placed reliance on the judgment of the Apex Court in (Koli Lakhmanbhai Chanabhai v. State of Gujarat)12, reported in 2000 S.C.C.(Cri.) 13 . In this judgment, the Apex Court has observed that it is settled law that evidence of a hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. In this judgment, the Apex Court has observed that it is settled law that evidence of a hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. For this purpose, the reliance was placed by the Apex Court on its earlier judgments (Bhagwan Singh v. State of Haryana)13, reported in 1976 S.C.C.(Cri.) 7 and (Sat Paul v. Delhi Administration)14, reported in 1976 S.C.C.(Cri.) 160. 10. The Apex Court in (Syad Akbar v. State of Karnataka)15, reported in A.I.R. 1979 S.C. 1848 has laid down: "12. As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him hostile and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration, 1976(2) S.C.R. 11 ; "Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole with due caution and care, accept in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence, discard his evidence in toto." 13. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony." 11. The Apex Court in (State of U.P. v. Brahma Das)16, reported in A.I.R. 1986 S.C. 1769, found that though the evidence of P.W. 4 Ramesh Chand Verma clearly established that the deceased victim and the injured P.W. 14 were present at the scene of occurrence when they were taking measurements and that the assault was mounted on them at that point of time, yet P.W. 4 did not identify the assailants and had to be confronted with his earlier statement wherein he had implicated the accused, and he was declared as hostile in this context. The High Court had totally discarded his evidence on the ground that he had been declared hostile. The Apex Court observed that the High Court overlooked that he had been declared hostile only in the aforesaid context and that his evidence supported the prosecution version that the murderous assault took place at the aforesaid time and place as deposed by the other witnesses when he, in his official capacity, was engaged in taking the measurements. In doing so the High Court disregarded the settled position of law as reflected in numerous decisions of this Court to the effect that such part of the testimony of a hostile witness as inspires confidence can be accepted by the Court. The Apex Court referred to the cases of Bhagwan Singh v. State, 1976 S.C. 202, Sat Paul v. Delhi Administration, 1976 S.C. 294; Syad Akbar v. State of Karnataka, A.I.R. 1979 S.C. 1848; (Upendra Mahakud v. State of Maharashtra)17, 1985 Cri.L.J. 1767. 12. The Apex Court in (Anil Rai v. State of Bihar)18, reported in A.I.R. 2002(3) Bom.C.R. (S.C.)360 has laid down that the evidence of a witness who was permitted to be cross-examined by the Public Prosecutor does not completely efface the evidence of such witness from the record. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. We have already referred to the observations of the Apex court in Balu Sonba Shinde v. State of Maharashtra (supra). 13. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. We have already referred to the observations of the Apex court in Balu Sonba Shinde v. State of Maharashtra (supra). 13. Thus, the proposition which flows from the judgment of the Apex Court is that the mere fact that the witness has been declared hostile and permitted to be cross-examined by Public Prosecutor does not completely efface the evidence of such witness. The evidence of such witness remains admissible in trial and there is no legal bar to base conviction upon his testimony, if corroborated by other reliable evidence. The testimony of such witness is required to be closely scrutinised with due care and caution and such evidence can be accepted in the light of other evidence on record and that part of the testimony of such witness which is found to be credit worthy can be acted upon. Of course, if the credit of such witness is totally discredited, the Court shall as a matter of prudence discard his evidence in toto. 14. In the light of the above principles of law, we shall now scrutinise the evidence of the eye-witnesses. P.W. 3 Chandrashekhar has stated that deceased Madhukar Dudhpachare and another person by name Madhukar Gadikar were sitting and he was also there. The deceased asked him to bring Kharra and after he returned, he saw the deceased lying. He further stated that he knew the accused, but nothing happened in his presence. According to him, the deceased had sustained injury to his chest and there were blood stains on his clothes. Learned A.P.P. sought permission to put questions in the nature of cross-examination which was granted. In cross-examination, he denied that he made statement before the police as per portion marked A, but he admitted that after some days, he was brought before the Magistrate in District Court premises where his statement was recorded. He further stated that he had given statement before the Magistrate on oath and he had narrated the incident before the Magistrate. He further stated that the same was written as per his say. He admitted that he had stated before the Magistrate that the accused stabbed the deceased with spear head on his chest. He further stated that he had given statement before the Magistrate on oath and he had narrated the incident before the Magistrate. He further stated that the same was written as per his say. He admitted that he had stated before the Magistrate that the accused stabbed the deceased with spear head on his chest. He also admitted that the accused stabbed the deceased with spear head in his presence. He also admitted that the accused Vijay run away from the spot after stabbing the deceased with spear head. This witness was cross-examined by the defence. However, there was no cross examination on the material particulars of the evidence of this witness to the effect that the statement of this witness was recorded on oath by the Magistrate as per his says; that he had stated before the Magistrate that the accused stabbed the deceased with spear head on his chest; that accused stabbed the deceased with spear head in his presence and that the accused Vijay ran away from the spot after stabbing the deceased with spear head. There was also no cross-examination regarding the presence of this witness and that of Madhukar Gadikar and the deceased at the spot of incident or that the deceased had sustained injuries to his chest and his clothes were blood stained except for the suggestion that he had given false statement before the police as also the Magistrate or that the incident had not taken place in his presence and the accused had not assaulted Madhukar Dudhpachare in his presence. This witness, though he had given details of the incident regarding presence of the persons there as also that the deceased had sustained injuries to his chest and there were blood stains on his clothes yet this witness in his examination in chief did not disclose the presence of the accused on the spot as a result of which he was declared hostile. In the course of the cross-examination, he admitted that the accused had stabbed the deceased with spear head on his chest in his presence and that the accused ran away from the spot after stabbing deceased with spear head. The testimony of this witness finds corroboration from the other material circumstances on record. His evidence could not be discredited even though this witness was cross-examined and his evidence inspires confidence. The testimony of this witness finds corroboration from the other material circumstances on record. His evidence could not be discredited even though this witness was cross-examined and his evidence inspires confidence. Learned Advocate for the appellant had stated that the statement of this witness was recorded after five days of the incident on account of which the evidence of this witness should be disbelieved and more particularly since this witness had not initially supported the prosecution case. The mere fact that the statement of this witness is recorded after few days of the incident, by itself is not sufficient to discard the testimony of such witness unless it is established that the Investigating Officer was marking for time and he introduced a got up witness. In fact, the presence of this witness is spoken by Sitabai (P.W. 4), Madhukar Gadikar (P.W. 5) and Kamal (P.W. 7). In the dying declaration, which was immediately recorded by P.W. 8 after the deceased was admitted in the hospital at about 2.00 p.m. implicates the appellant/accused as the assailant and we shall refer to this evidence later. This witness has stated that on account of the injuries on the deceased, his clothes were stained with blood. Report of C.A. corroborates the said fact since human blood was found on the clothes of deceased. In view of the above, we are of the opinion that the credit of this witness has not been shaken and in the light of the other circumstances on record, there is no reason whatsoever to discard the testimony of this witness. 15. The next witness examined by the prosecution is Sitabai (P.W. 4). The incident in question took place near the house of the deceased. According to Babanrao (P.W. 6), the spot of incident is at a distance of about 15 to 20 ft. from the house of the injured deceased. Sitabai (P.W. 4) mother of the deceased had stated that accused Vijay stabbed her son Madhukar with spear head on the chest and he ran away. During cross-examination, she admitted that on the date of incident, she had gone to weekly market at Gokulpeth and returned from there at about 8.00 p.m. This witness is 70 years old and sells fish in Gokulpeth. The incident admittedly has taken place at a distance of about 15 to 20 ft. from the house of the injured deceased. During cross-examination, she admitted that on the date of incident, she had gone to weekly market at Gokulpeth and returned from there at about 8.00 p.m. This witness is 70 years old and sells fish in Gokulpeth. The incident admittedly has taken place at a distance of about 15 to 20 ft. from the house of the injured deceased. There was no cross-examination at all in respect of the material particulars of her evidence. Even though she has stated that she returned at 8.00 p.m., there is nothing to show that this witness had sense of time and that is why she has stated that she returned at about 8.00 p.m. The evidence of this witness has been attacked on the ground that this witness had not seen the incident and her presence is not spoken by other witness. The house of this witness is close to the scene of offence and as such, it is quite possible that her presence from where she had seen the incident was not noticed by anyone. We have already pointed out that this witness was not at all cross-examined on material particulars. This witness has been believed by the trial Court who has the benefit of observing the demeanour of the witness and we have no reason to take a different view of the matter. 16. P.W. 5 Madhukar Gadikar has stated that he along with the deceased and Chandrashekhar were sitting near the house of the deceased. Somebody came there and assaulted with sword and he had not seen the accused there. Thus, this witness speaks of the presence of the deceased as also Chandrashekhar (P.W. 3) sitting near the house of the deceased. He also states that somebody came there and assaulted with sword but he had not seen the accused there. It was on this ground that this witness was permitted to be cross-examined by learned A.P.P. In the cross-examination, he admitted that he tried to intervene between them, but he was afraid of the weapon, Madhukar fell down and accused Vijay ran away. This statement clearly shows that he intervened between Madhukar and accused/appellant Vijay but, he was afraid of the weapon and in the meantime, Madhukar (deceased) fell down and accused Vijay ran away. The statement of this witness was also recorded by the Magistrate. This witness admitted that his statement was correctly recorded by the Magistrate. This statement clearly shows that he intervened between Madhukar and accused/appellant Vijay but, he was afraid of the weapon and in the meantime, Madhukar (deceased) fell down and accused Vijay ran away. The statement of this witness was also recorded by the Magistrate. This witness admitted that his statement was correctly recorded by the Magistrate. He also admitted that he has made statement before the Magistrate that the accused Vijay stabbed spear head on the chest of the deceased. It is pertinent to note that there has been no cross-examination at all on the matters elicited during cross-examination. The evidence of this witness, therefore proves that at the place of incident he, deceased and Chandrashekhar (P.W. 3) were sitting near the house of the deceased and that it was the appellant who had stabbed the deceased on his chest with spear head. The medical evidence shows injuries on the chest of the deceased. The evidence of this witness thus gets corroboration from the material on record and there is no reason whatsoever to discard his testimony. 17. P.W. 6, Babanrao, who investigated the case, has stated that the accused was arrested in Azamshah Chowk and one spear head was found near the waist of the accused. It is no doubt true that the panchas have not supported the recovery, but the said spear head blade was found to be stained with human blood. All the witnesses have stated that the assault was by spear head. The weapon was sent to doctor for his opinion and the doctor in his report which is at Exh. 22, has stated that Injury Nos. 1 and 2 mentioned in the post-mortem report are possible by this weapon. The said weapon had blood stains and the evidence is to the effect that the assault was by spear head. The medical evidence thus corroborates the testimony of witnesses Chandrashekhar (P.W. 3), Sitabai (P.W. 4) Madhukar Gadikar (P.W. 5) and Kamal (P.W. 7). The post-mortem report shows the following injuries on the person of the deceased. (1) A stitched wound: on front (Lt.) Chest 5 cm. longs: edges well approximated. (2) A stitched wound : on (Lt.) lateral chest 8th I.C.S. 3 cm. long, edges well approximated (NB = 1/C = Htecortalspace) (3) An abrasion (Lt.) knee : 7 cm. x 5 cm. red coloured. (4) An abrasion (Rt.) knee : 6 cm. x 4 cm. (1) A stitched wound: on front (Lt.) Chest 5 cm. longs: edges well approximated. (2) A stitched wound : on (Lt.) lateral chest 8th I.C.S. 3 cm. long, edges well approximated (NB = 1/C = Htecortalspace) (3) An abrasion (Lt.) knee : 7 cm. x 5 cm. red coloured. (4) An abrasion (Rt.) knee : 6 cm. x 4 cm. red coloured. 18. Kamal (P.W. 7) has stated that she returned home at 7.00 p.m. and did not know anything about the incident. She was permitted to be cross-examined by the learned A.P.P. and during cross-examination, she stated that in the meantime, Vijay Shankar Shivarkar came with spear head in his hand and he stabbed spear head on the chest of deceased Madhukar and injured him seriously. At that time, according to her, she was standing in the Courtyard. The said deceased Madhukar fell down and he was full of blood. The evidence of this witness is again attacked on the ground that the presence of this witness is not spoken by other witnesses but it is pertinent to note that this witness has seen the incident from the Courtyard on account of which she might not have been noticed by other witnesses. It is pertinent to note that this witness was not at all cross-examined by the defence in relation to the facts which were elicited by the prosecution during cross-examination. The credit of this witness, therefore, has not been shaken at all and since her evidence of assault by spear head on the chest is corroborated by other evidence on record, we have no reason to discard the testimony of this witness. 19. We shall now come to the dying declaration of the deceased which was recorded by P.W. 8 Head Constable Baburao. P.W. 8 has stated that he was on duty from 9.00 a.m. to 9.00 p.m. at Mayo Hospital booth on 15-12-1992. In the evening at about 7.00 p.m., injured Madhukar Dudhpachare was brought to Mayo Hospital. He gave requisition to C.M.O. enquiring from him whether the injured was in a position to give statement or not. The doctor put an endorsement that the patient was fit for giving statement. In the evening at about 7.00 p.m., injured Madhukar Dudhpachare was brought to Mayo Hospital. He gave requisition to C.M.O. enquiring from him whether the injured was in a position to give statement or not. The doctor put an endorsement that the patient was fit for giving statement. He, therefore, recorded the statement of this witness at about 7.00 p.m. It is pertinent to note that the incident has taken place at about 6.00 p.m. and this statement of the deceased was recorded within an hour of the incident. After ascertaining the fitness of the injured deceased, he recorded the statement of the injured deceased and he confirmed the said statement recorded by him. He further states that he had taken the thumb impression of the injured Madhukar. He confirmed the contents of said statement as correct. Thereafter, he informed Lakadganj Police Station on phone. He admitted during the cross-examination that he has not taken the signature of C.M.O. on the statement. It was suggested to him that he had not recorded the statement in the presence of doctor and hence doctor did not sign, which was denied by him. This suggestion implicitly does not challenge the recording of the statement of the injured by this witness. It was merely suggested to him that he had recorded false statement at the instance of Superior Officer. For this suggestion, there is absolutely no material on record. 20. Babanrao (P.W. 6) has stated that on 15-12-1992, he was Day Officer on duty at Lakadganj Police Station from 9.00 a.m. to 9.00 p.m. and on that day about 7.00 p.m., Head Constable Baburao informed him on phone that accused Vijay stabbed with spear head and injured Madhukar. He stated that he had gone to the hospital after making station diary entry. The patient was inside the operation theatre due to which he could not record his statement, but, Head Constable Baburao had already recorded the statement of injured. This witness, therefore, corroborates Baburao (P.W. 8) that the statement of the deceased had been recorded by him as also the telephonic message given by him to Lakadganj Police Station that the accused Vijay stabbed spear head and injured Madhukar. 21. The prosecution had examined Doctor Ambadas (P.W. 10), who stated that on 15-12-1992, he was C.M.O. in Mayo Hospital when one Madhukar Balkrishna Dudhpachare was brought in injured condition in casualty ward. 21. The prosecution had examined Doctor Ambadas (P.W. 10), who stated that on 15-12-1992, he was C.M.O. in Mayo Hospital when one Madhukar Balkrishna Dudhpachare was brought in injured condition in casualty ward. He further stated that Police Constable gave him requisition asking him whether the injured is fit to give the statement. He examined the patient and saw him. He was in a position to talk and he was fit to give the statement. He accordingly made endorsement in his handwriting on the requisition to the effect that, "fit to give statement" and signed the same. It was suggested to him that the injured became unconscious when he was giving statement, which was denied by him. The recording of the statement, therefore, was not disputed but what was disputed by the appellant was that the injured had become unconscious while his statement was being recorded. This statement of injured Madhukar is sought to be used as dying declaration by the prosecution. The same has been attacked by the learned Advocate for the appellant on various counts. In support of his contentions, reliance is placed on number of rulings. The reliance placed on Ratan Gond v. State of Bihar (supra) is totally misplaced since the same is not at all attracted to the facts and circumstances of this case. In that case the statement did not relate to the cause of death of the person making statement, but it related to the death of her sister. The statement made by the deceased is certainly as to the cause of his death and his statement has been duly recorded by the Head Constable and there is no bar whatsoever that the Police Officer is not empowered or entitled to record such statement. The deceased had stated that the accused stabbed him by spear head on left side of chest and thereafter fled away. 22. Learned Advocate for the appellant has himself relied upon the judgment of Apex Court in Dalip Singh and others v. State of Punjab (supra) which lays down that although a dying declaration recorded by a Police Officer during the course of investigation is admissible under section 32 of the Evidence Act, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. It is further observed in this judgment by the Apex Court that the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged, but this is not to suggest that such dying declarations are always untrustworthy and what has to be emphasized is that better and more reliable methods of recorded dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method. There has been slight shift in respect of recording of dying declaration by Police Officer in subsequent judgments of the Apex Court to which we shall make reference lateron. 23. Learned Advocate for the appellant has also relied upon the judgment in Mohan Singh others v. State of Punjab (supra) and has urged before us that since the declaration is not attested by the deceaseds wife or doctor who were present there, it cannot be relied upon. The context in which these observations have been made is important. In this case, there was discrepancy between ocular and medical evidence regarding the weapon, as stated by the witness which was spade but according to the medical evidence the injuries could be caused only by pickaxe. After the said evidence was discarded, the case rested on dying declaration and it is in this context that reliance was not placed on the dying declaration as the same was not attested by the deceaseds wife or doctor present there. Reliance is then placed on the judgment of the Division Bench of this Court in Manohar Dadarao Landge v. State of Maharashtra (supra) in support of the argument that it is the duty of the prosecution to specifically bring on record that the deceased had heard the statement recorded by the Executive Magistrate and admitted it to be true and correct. The case rested only on dying declaration and the observations have been made in that context. 24. The Apex Court in State of Karnataka v. Shariff (supra) has laid down that there is no requirement of law that the dying declaration must necessarily be made to the Magistrate. The dying declaration though recorded by the police personnel cannot be discarded. The case rested only on dying declaration and the observations have been made in that context. 24. The Apex Court in State of Karnataka v. Shariff (supra) has laid down that there is no requirement of law that the dying declaration must necessarily be made to the Magistrate. The dying declaration though recorded by the police personnel cannot be discarded. The Apex Court relied upon two of its earlier judgments in (Bhagirath v. State of Haryana)19, reported in A.I.R. 1997 S.C. 234 and (Munnu Raja v. State of Madhya Pradesh)20, reported in 1976(2) S.C.R. 764 in para 21 which reads as under:-- "It is true P.W. 11 and P.W. 14 were Police Parsonnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana, A.I.R. 1997 S.C. 234 on receiving message from the hospital that a person with gun shot injuries had been admitted, a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja and another v. State of Madhya Pradesh, 1976(2) S.C.R. 764 wherein the statement made by the deceased to the Investigating Officer at the Police Station by way of first. Information report which was recorded in writing, was held to be admissible in evidence." 25. Reliance placed by learned Advocate for the appellant on the judgment of Division Bench of this Court on Shyamrao Vithal Poiemar v. State of Maharashtra (supra) is again misplaced. In this judgment it was laid down that it was incumbent for the prosecution to place before the Court the evidence of the Medical Officer who examined the declarant and certify that the declarant is in a fit mental condition to give the statement. In this judgment it was laid down that it was incumbent for the prosecution to place before the Court the evidence of the Medical Officer who examined the declarant and certify that the declarant is in a fit mental condition to give the statement. The satisfaction of either, the executive Magistrate and the Police Officer regarding the mental fitness of the declarant to give the statement is not enough to discharge the burden on the prosecution to prove that the declarant was in a fit mental condition, when the dying declaration was recorded. It has been further laid down in this judgment that may be such subjective satisfaction can be used as an additional prop to the evidence of the Medical Officer, but it could never be used as a substitute to the opinion of the Medical Officer regarding the mental fitness of the declarant. The proposition laid down by the Division Bench of this Court in this judgment can no longer be said to be good law in the light of the observations made in the judgment of the Constitution Bench of the Apex Court in Laxman v. State of Maharashtra (supra). In this authority, it has been laid down:-- "The situation to which a man is on the deathbed is very solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a produce of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore the Court in order to satisfy whether, the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore the Court in order to satisfy whether, the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he had recorded the dying declaration." 26. In the case before us, the Doctor (P.W. 10) has been examined who has stated that Police Constable had given him requisition making enquiries whether the injured was fit to give statement. He examined the patient. He was in a position to talk and was fit to give statement. He made an endorsement to the effect that the patient was fit to give statement and it is only thereafter that the statement was recorded by P.W. 8 who has stated that he was on duty at Mayo Hospital Booth when the injured Madhukar was brought there about 7.00 p.m. He gave requisition to C.M.O. enquiring from him whether the injured was in a position to give statement or not. The doctor made endorsement that the patient was fit to give statement. Thereafter, only he recorded the statement of the injured as per his say and thereafter recorded the thumb impression of the injured. He confirmed the contents of the statement are correct. In the circumstances, we have no reason whatsoever to discard the dying declaration which has been recorded after following all the necessary formalities required in that behalf. It is now well settled that conviction can be based solely on dying declaration if it is found to be truthful, voluntary reliable and inspires confidence. 27. Learned Advocate for the appellant had also placed reliance on Bablya alias Ramesh Shankar Yarpude v. State of Maharashtra (supra) to which one of us (R.K. Batta, J.) was a party. Reliance on this judgment is again misplaced since it is not attracted at all to the facts and circumstances of this case. In this case, it was found that when the deceased was admitted to the hospital he was in unconscious condition and he was immediately taken to operation theatre. The dying declaration was recorded immediately thereafter by the Investigating Officer. It was found that the patient was under general anaesthesia during operation and there was serious doubt as to whether deceased was really in a fit state and condition to make statement. It was in this context that observations were made that neither doctor was present while recording dying declaration nor any certificate was given at the end of recording dying declaration nor any executive Magistrate was called on account of which the dying declaration was not relied upon. 28. It was in this context that observations were made that neither doctor was present while recording dying declaration nor any certificate was given at the end of recording dying declaration nor any executive Magistrate was called on account of which the dying declaration was not relied upon. 28. The dying declaration thus gets corroboration from the other evidence on record including the testimony of the eye-witnesses to which we have already referred. In the dying declaration the witness had stated that the appellant had stabbed with spear head on the left side of the chest injuring him after which he flad away. The doctor has opined that the injuries on the chest were possible by the spear head on which human blood was also found. The circumstances on record thus lend assurance to the dying declaration. 29. The sum total of the scrutiny of the evidence referred to above would go to show that the prosecution had duly established the charge of murder as against the appellant on the basis of evidence adduced before the Court. We, therefore, do not find any merit in this appeal and the appeal is hereby rejected. Appeal dismissed. -----