P. S. NARAYANA, J. ( 1 ) THE appellants herein are A-1 and A-2 in sessions Case No. 40 of 1997 on the file of the Sessions Judge, Cuddapah. A-1 to A-4 were tried in the aforesaid Sessions Case for the charges under Section 302 read with section 34 IPC. The learned Sessions judge, on appreciation of the evidence of p. Ws 1 to 9, Exs. P-1 to P-14, Ex. D-1 and m. Os 1 to 6, ultimately, convicted A1 for the offence under Section 304-II IPC and sentenced him to undergo Rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/- in default, to undergo Rigorous Imprisonment for a period of two months, and convicted A2 also for the offence under Section 324 IPC and sentenced him to undergo Rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- in default, to undergo rigorous Imprisonment for a period of one month, but however, acquitted A-3 and A-4. ( 2 ) THE version of the prosecution is that on 30. 06. 1996 at about 6. 30 P. M. at the outskirts of B. Kothapalli, Kondapuram mandal, Cuddapah District, while the deceased Busagani Krishnaiah was returning from his orange garden, A-2 to a-4 caught hold of him, A-1 and A-2 hacked him with hunting sickle, as a result of which, he died on the same day at 10. 30 p. m. P. Ws 1 to 5 are the residents of b. Kothappalli Village. The accused and the deceased are also residents of the same village. P. W. 1 is the brother of the deceased- busagani Krishnaiah. P. W. 3 is the father-in- law of P. W. 1. P. W. 4 is the wife of the deceased. It is also the version of the prosecution that 15 days prior to the incident, there was a galata between the children of p. W. 1 and the children of the accused and on that, the deceased B. Krishnaiah found fault with the children of the accused and beat them, and the accused could not tolerate the said act of the deceased and he was waiting for an opportunity. On 30 06. On 30 06. 1996, the deceased, P. Ws 1 and 2 went to the orange garden for cultivating the land and after completing the ploughing of the garden, the deceased was returning home with yoke of bulls followed by P. Ws 1 and 2, at about 6. 30 P. M. , A-1 to A-4 suddenly came from cheeki bushes armed with hunting sickles and detained the deceased. On being instigated by A- 1, A-2 to a-4 caught hold of the deceased and pushed him down, A-1 hacked him with hunting sickle on the lower portion of left knee causing a deep cut injury, and A-2 hacked him with hunting sickle and caused injury on the left hand fingers. Again A-2 beat the deceased with the reverse portion of the sickle on his left ribs. On seeing P. Ws 1 and 2, the accused ran away. Then P. W. 1 sent p. W. 2 to the village. P. W. 2 brought P. W. 3, and the wife of the deceased P. W. 4, and the deceased narrated about the incident to p. W. 4. Then P. Ws 1 to 3 and one Gopal had taken the deceased to Thallaproddatur police Station at about 8. 00 p. m. On the same day P. W. 7 Sub-Inspector of police, thallaproddatur Police Station recorded the statement of the injured and obtained thumb impression of the deceased and Ex. P. 3 is the statement. P. W. 7 registered the same as a case in Crime No. 28 of 1996 under section 307 IPC and submitted the FIRs to all the concerned. Ex. P. 4 is the First information Report. P. W. 7 recorded the statement of the injured Ex. P. 5 On the way to the hospital, the deceased died. On 01-07-1996 at about 9. 30 P. M. P. W. 7 received death intimation from Tadipatri police Station, and later, he altered the section of law to Section 302 IPC. On 01-07-1996 P. W. 9- Inspector of Police, kondapuram, conducted inquest over the dead body of the deceased and during the inquest, he examined P. Ws 1 to 4 and recorded their statements. Ex. P. 1 is the inquest report. On 01 -07- 1996 at 1. On 01-07-1996 P. W. 9- Inspector of Police, kondapuram, conducted inquest over the dead body of the deceased and during the inquest, he examined P. Ws 1 to 4 and recorded their statements. Ex. P. 1 is the inquest report. On 01 -07- 1996 at 1. 50 p. m. , p. W. 6-Civil Assistant Surgeon, Government hospital, Tadipatri, conducted autopsy over the dead body of the deceased and the death appears to have been due to shock and haemorrhage due to injury to left leg and injury to left kidney. Ex. P2 is the postmortem certificate. The accused were arrested on 11 -08-1996 by P. W. 7 and P. W. 9. A1 made a confession. Ex. P-9 is the admissible portion of panchanama. A1 produced the hunting sickle and the same was seized under ex. P. 10 panchanama. P. W. 9 filed charge sheet on 15-10-1996. ( 3 ) AS already stated above, on appreciation of the evidence available on record, the learned Sessions Judge convicted A-1 under section 304-II IPC and a-2 under Section 324 IPC imposing sentence as referred to supra. ( 4 ) SRI Kodandarami Reddy, learned counsel representing the appellants made the following submissions. The learned counsel pointed out that the learned sessions Judge in fact, had not believed the evidence of P. Ws 1 arid 2, and also had expressed several doubts about the investigation, and having observed so, the learned Sessions Judge had totally erred in convicting A-1 and A-2 and imposing sentence against them, instead of recording an acquittal. The learned Counsel also had taken this Court through the contents of Exs p-3 and P-5. Ex. P. 3 was recorded by P. W. 7 and Ex. P. 5 also was recorded by P. W. 7. The learned Counsel pointed out that the name of P. W. 4-the wife of the deceased was not mentioned either in Ex. P - 3 or Ex. P. 5. The learned Counsel also would submit that exs. P 3 and P. 5 were also looked with suspicion by the learned Sessions Judge. The learned Counsel also pointed out that except the oral dying declaration alleged to have been made by the deceased to P. W. 4, there is no other acceptable evidence on record to sustain the conviction. The learned Counsel also would submit that exs. P 3 and P. 5 were also looked with suspicion by the learned Sessions Judge. The learned Counsel also pointed out that except the oral dying declaration alleged to have been made by the deceased to P. W. 4, there is no other acceptable evidence on record to sustain the conviction. The learned counsel also pointed out that absolutely, there is no corroboration to the evidence of p. W. 4, though P. W. 5 admitted that several villagers also gathered and heard what was stated by the deceased, but, none of them were examined. In the light of Ex. D-1-prior statement of P. W. 3, the evidence of P. W3 also cannot be relied upon in view of the difference in the version of P. W. 3 in Ex. D-1 and before the Court. The learned Counsel also would submit that in the light of the findings recorded by the learned Sessions judge also, it is a fit case where an acquittal to be recorded. The learned Counsel placed strong reliance on Heikrujam Chaoba Singh v. State of Man/pur. ( 5 ) ON the contrary, the learned Additional public Prosecutor made the following submissions. The learned Additional Public prosecutor would submit that it is no doubt true that certain findings had been recorded by the learned Sessions Judge expressing doubt about the trustworthiness of P. Ws 1 and 2. But inasmuch as this is an appeal against the conviction, this Court as appellate Court can independently appreciate the evidence available on record and can record proper findings in this regard. The learned Additional Public prosecutor placed strong reliance on sham Sunder v. Puran. The learned additional Public Prosecutor further pointed out that apart from the evidence of P. Ws 1 and 2, the evidence of P. Ws. 3 and 4 is also available on record. P. W. 4 clearly and categorically deposed what had been stated by the deceased and this oral dying declaration of P. W. 4 coupled with Ex. P3- statement of the deceased, recorded by the sub-Inspector of Police, P. W. 7 and also the other evidence available on record would definitely prove the guilt of the accused and in fact, the sentence imposed is on the lower side and the learned Sessions Judge had been very liberal in this regard. P3- statement of the deceased, recorded by the sub-Inspector of Police, P. W. 7 and also the other evidence available on record would definitely prove the guilt of the accused and in fact, the sentence imposed is on the lower side and the learned Sessions Judge had been very liberal in this regard. The learned additional Public Prosecutor in all fairness submitted that though normally the police officers are not expected to record dying declarations when there is no time available, in such circumstances the dying declarations recorded by the police also may be looked into and in this view of the matter, Ex. P - 3 can be taken into consideration. The learned additional Public Prosecutor placed strong reliance on Laxmi v. Om Prakash in this regard. ( 6 ) HEARD the Counsel and perused the oral and documentary evidence available on record and also the findings recorded by the learned Sessions Judge, Cuddapah. ( 7 ) IT is no doubt true that the learned sessions Judge, after recording certain reasons expressed some doubt about the trustworthiness of P. Ws 1 and 2. It is also no doubt true that certain findings had been recorded relating to the defects in investigation and the other relevant aspects. In Sham Sunder v. Puran case, the Apex court while dealing with section 386 Cr. P. C. and an appeal against conviction before the high Court and the reappraisal of evidence by the High Court observed as follows :"the High Court, exercising power under Section 386 Cr. P. C. , in appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding alter the nature or the extent or the nature and extent of the sentence but not so as to enhance the same. The powers of the High court in dealing with the evidence are as wide as that of the trial Court. As the final court of facts, the High Court has also duty to examine the evidence and arrive at its own conclusion on the entire material on record as to the guilt or otherwise of the appellants before it. " ( 8 ) THE evidence of P. W. 1 is to theeffect that at about two years back his younger brother Krishnaiah was murdered at 6. " ( 8 ) THE evidence of P. W. 1 is to theeffect that at about two years back his younger brother Krishnaiah was murdered at 6. 30 p. m. , and on the date of the incident at about 3. 00 p. m. the deceased was going to plough an orange garden, and P. W. 1 his son-in-law-Mallareddy also went along with him with plough drawn by bulls and after going to the field, his younger brother ploughed the land and P. W. 1 and his son-in- law carted the ridges, and about sun-set his deceased brother returned home with bulls. P. W. 1 deposed that himself and his son-in- law were also following him at a distance, and when his brother was furlong away from village main and when he was walking 1 1/2 yards behind the bulls, all the four accused came from cheeki bushes armed with sickles. This witness also deposed that at that time himself and Mallareddy were at about 10 to 20 yards behind the deceased, when the accused surrounded and all the four accused obstructed the deceased and a - 1 among them shouted how could he give support to his father-in-law-Gurrappa and a-1 so shouting, also shouted the deceased and instigated the other accused to kill him, and on that A-2 to A-4 held the deceased and made him to fell down and also held him tightly, and thereupon, A-1 hacked the deceased on the left leg below the knee with hunting sickle. P. W. 1 further deposed that when the deceased brother shouting loudly, on hearing that, they also shouted and in the meanwhile A-2 with a hunting sickle, attempted to give a blow when the deceased attempting to ward off raising his left hand and that the four fingers of left hand were chacked off, and that thereafter, A-2 beat the deceased on the left flank with reverse and blunt portion of the sickle, and against his brother shouted and they all approached him by the shouts and all the four accused ran away. This witness also deposed what had happened subsequently. This witness also further deposed what happened prior to the incident and why the accused bore grudge against the deceased. This witness was elaborately cross-examined and several suggestions were put to him to discredit his testimony. This witness also deposed what had happened subsequently. This witness also further deposed what happened prior to the incident and why the accused bore grudge against the deceased. This witness was elaborately cross-examined and several suggestions were put to him to discredit his testimony. Some questions relating to the political fractions were also put to him and the suggestions put to him had been denied. ( 9 ) THE evidence of P. W. 2 is also just in corroboration with the evidence of P. W. 1 in all material particulars. No doubt, the learned sessions Judge had recorded certain reasons and doubted the presence of p. Ws 1 and 2. On a careful scrutiny of the evidence of P. Ws 1 and 2, the discrepancies pointed out by the learned Sessions Judge, for disbelieving the version or for recording a finding doubting their presence, cannot be sustained for the reason that the evidence is that the deceased was going ahead and they were coming far behind and in this view of the matter, the very presence of these witnesses in the near vicinity cannot be doubted, though their actual presence at the spot at the relevant point of time may be of some doubt as expressed by the learned sessions Judge. ( 10 ) APART from this evidence, the evidence of P. W. 3 is available who had deposed that the deceased Krishnaiah is the brother and P. W. 1 is his son-in-law and on the evening of the death of the deceased, mallareddy-P W. 2 came to his house and just before setting of darkness, he informed him that A - 1 hacked the deceased with hunting sickle on a road, and on that, this witness, the wife of the deceased, the mother o! the deceased and several others went to that place. P. W. 3 also clearly deposed that among them, the wife of the deceased ran fast than others and went to the deceased earlier than others and she asked the deceased as to why the incident had happened, and later they reached there. He further deposed that while the deceased was narrating the incident to his wife, to their hearing, the deceased informed his wife that when he was returning from Batavia Garden, a-1 and others came from Cheeki bushes and among them, A-1 hacked the deceased with hunting sickle after instigating others to kill him. He further deposed that while the deceased was narrating the incident to his wife, to their hearing, the deceased informed his wife that when he was returning from Batavia Garden, a-1 and others came from Cheeki bushes and among them, A-1 hacked the deceased with hunting sickle after instigating others to kill him. P. W. 3 further deposed that the deceased also informed his wife that later a-2 when attempted to hacking, he raised his hand and in that the four fingers were cut off and thereafter, A-2 again given a blow to his left flank with the blunt side of the sickle. This witness also deposed about the quarrel between these families prior to the incident. This witness was also cross-examined at length and several suggestions were put to him. It was elicited that it is not true to say that he had not stated before the police that the wife of the deceased and the mother of the deceased came along with him when mallareddy informed the incident, when they went to the scene of offence in the evening. This witness also deposed that he walked slowly while the wife of the deceased ran fast and the decease started narrating the incident to his wife, by the time he reached the deceased. ( 11 ) P. W. 4 is the wife of the deceased who had deposed clearly that after reaching the scene of offence, she had seen the left leg of the deceased was hacked and on her asking the deceased as to how it happened, the deceased informed her that when he was returning from Batavia Garden, all the four accused came in front of him from cheeki bushes and raising their hunting sickles, A-1 shouted that he would be killed, and on that A-2 and A-3 held him and made him to fell down and thereafter, A1 hacked him with hunting sickle below left knee, thereafter A-2 had attempted to hacking, and when the deceased raising hand to ward the blow, his four left hand fingers were cut off, and thereafter, A-2 beat him with blunt side of the sickle on his left flank and then they ran away. ( 12 ) THE crucial aspect pointed out by the learned Counsel for the appellants is that this witness in cross-examination admitted that all the villagers in the village came and saw the deceased and all of them heard the deceased narrating the incident to his wife. On the strength of the statement, submissions at length were made that absolutely there is no corroboration with the evidence of P. W. 4 and P. W. 4 is just an interested witness and she is the wife of the deceased and in view of the same on the strength of such oral dying declaration, conviction cannot be sustained. ( 13 ) P. W. 5 deposed that the inquest was conducted on the dead body of the deceased and they noticed the cut injury on the four fingers of hand and after holding inquest, inquest report was written and ex. P - 1 contains his signature. ( 14 ) P. W. 6 is the Civil Assistant Surgeon who had deposed about the injuries as hereunder: (1) Incised injury over the left leg upper 1/2rd 20 Cms x 4 Cms x bone deep, bones and muscles are cut fracture ends of bones are seen outside, margins contused. (2) Incised injury on the palmer aspect of the dorsal end of four fingers of left hand with index middle ring fingers is 1. 5 Cms x 0. 5 Cms, tissue deep over the little finger 1 Cm x 0. 5 Cms x tissue deep. Margins contused. (3) Abrasion below left costal margin over left Renal area 5 Cms x 1 Cm. This witness opined that the deceased would appear to have died of shock and haemorrhage due to injury to left leg and injury to left kidney and died 15 to 20 hours prior to post-mortem examination. Ex. P. 2 is the postmortem certificate issued by him. He further deposed that injury No1 is sufficient to cause death in ordinary course and injuries 2 and 3 by themselves or together cannot cause death, but all the three injuries together can cause death of the deceased. He further deposed that the weapon like m. 04 can cause injury No. 1, injury No. 2 with a sharp edged weapon and injury No. 3 can be caused with blunt side of M. O4. This witness was cross-examined at length relating to the injuries and other aspects. He further deposed that the weapon like m. 04 can cause injury No. 1, injury No. 2 with a sharp edged weapon and injury No. 3 can be caused with blunt side of M. O4. This witness was cross-examined at length relating to the injuries and other aspects. ( 15 ) P. W. 7 worked as Sub-Inspector of police, Thallaproddatur Police station and this witness on 30. 06. 1996 at about 8. 00 p. m. while he was in charge of the police Station, the deceased was brought with injuries in a tractor by Peddaiah (P. W. 1) and he had recorded the statement of the injured and obtained thumb impression of the deceased and the statement is Ex. P - 3, which reads as here under :"i am resident of B. Kothapalli village of kondapuram Mandal. I live by cultivation. Today i. e. , on 30. 06. 1996 evening at 3. 00 P. M. myself, my brother Peddaiah and Myle Malla reddy went for cultivating the land and after completing the work we were returning home along with my brother peddaiah and Myle Malla Reddy. I was following with bulls. My brother peddaiah and Myle Malla Reddy were coming behind me. When we came near the village at a distance of one furlong at about 6. 30 P. M. Naraboina kullayappa son of Chinna Narayana 2. Naraboina Adinarayana son of Chinna narayana 3. Naraboina Narasimhulu and 4. Naraboina Chinna Narayana son of Pakeerappa all armed with hunting sickles came from the orange garden across the road, showed the hunting sickle and said " you have supported your uncle on that day" harassing in a filthy language and then naraboina Adinarayana, Naraboina narasimhulu, Naraboina Chinna narayana came and caught hold of me and thrown me on the floor. Then naraboina Kullayappa who armed with hunting sickle hacked below my left knee. Due to that I sustained a grievous bleeding injury below my left knee. Then my brother Peddaiah and Myle malla Reddy came and shouted, all the accused ran away. Then my brother peddaiah took me in a tractor to the police station. Then I gave a statement as was happened. Read over to me and admitted to be true and correct. "it is no doubt true that in Ex. Then my brother Peddaiah and Myle malla Reddy came and shouted, all the accused ran away. Then my brother peddaiah took me in a tractor to the police station. Then I gave a statement as was happened. Read over to me and admitted to be true and correct. "it is no doubt true that in Ex. P-3, the presence of P. W. 4 or narration of the incident to P. W. 4 had not been specified and it was also pointed out that Exs. P - 3 and P - 5 were viewed with suspicion by the learned sessions Judge. Ex. P - 5 is yet another statement recorded by P. W. 7. P. W. 7 further deposed about the details of investigation. He registered the First Information Report as a case in Crime No. 28 of 1996 under section 307 IPC and submitted the FIRs to all the concerned. Ex. P. 4 is the F. I. R. P. W. 7 deposed that he examined and recorded the statement of the injured as per Ex. P. 5 and thereafter, he sent the injured with a requisition to the Government Hospital, tadipatri and immediately, he proceeded to the scene of offence at 9. 30 p. m. , in order to secure the witnesses and to record their statements, but none of the witnesses were present at the scene of offence as it was darkness and that he stayed there in that night and on the next day, he went to the scene of offence along with panchayatdars and observed the scene of offence. He further deposed that he prepared a rough sketch at the scene of offence and seized blood stained earth and control earth under an observation report and it is Ex. P. 6. Ex. P. 7 is the rough sketch of the scene of offence. Control earth is M. O. 5 and blood stained earth is M. O. 6. This witness also deposed that he went to Batavia garden of the deceased, but he did not take any mediators to that garden and he found that the said garden was cultivated here and there, and thereafter at 8. 00 a. m. he returned to the police station. P W. 7 further deposed that at 9. This witness also deposed that he went to Batavia garden of the deceased, but he did not take any mediators to that garden and he found that the said garden was cultivated here and there, and thereafter at 8. 00 a. m. he returned to the police station. P W. 7 further deposed that at 9. 30 a. m. , he received death intimation from tadiparti Town Constable No. 878 of anantapur District and then, he altered the section of law to Section 302 IPC and sent f!rs to all the concerned. Ex. P. 8 is the altered F. I. R. and he intimated to the Circle inspector of Police through V. H. F. set and he had taken up investigation at 10. 30 a. m. , and that he did not examine P. Ws. 3 and 4. This witness was cross-examined at length. ( 16 ) P. W. 8 is the Village Administrative officer of Thallaproddatur, and he deposed about a proceedings relating to the arrest of the accused Fix. P. 9 (Admission portion only), and it contains his signature. P. W. 8 also deposed about M. O4 and the police had seized the weapon under panchanama and the admissible portion therein was marked ex. P. 10. Thus, this witness had deposed about Exs. P. 9 and P. 10 admissible portions. ( 17 ) P. W. 9-lnspector of Police deposed that he had received message regarding murder in Crime No. 28 of 1996 and he reached Thallaproddatur police Station and received express FIR. He further deposed that he along with S. l. , Thallaproddatur left and reached Tadipatri at 11. 50 a. m. , and collected witnesses and panchayatdars and held inquest over the dead body of the deceased, and examined the witnesses p. Ws 1 to 4 and recorded their statements and prepared inquest report-Ex. P - 1 and recorded statement of Nagamma, He further deposed that after completion of inquest, he sent the dead body to the medical officer tadipatri Hospital for post-mortem examination and visited B. Kothapalli village and visited the scene of offence. This witness also had deposed about sending m. Os 1 to 3 and M. Os 5 and 6 with a letter of requisition (Ex. P - 11) regarding M. Os 1 to 3, 5 and 6 to an expert and he submitted a letter of requisition-Ex. This witness also had deposed about sending m. Os 1 to 3 and M. Os 5 and 6 with a letter of requisition (Ex. P - 11) regarding M. Os 1 to 3, 5 and 6 to an expert and he submitted a letter of requisition-Ex. P - 12 regarding M. O. 4. He further deposed that he received exs. P - 13 and P-14 from the Chemical analysist. This witness, however, deposed that on 11- 8 - 1996, he along with Sub- inspector of police received information about the accused and they caught hold of the accused and arrested them. This witness also deposed about recording of confessional statement of A-1 and panchanama at the spot. Ex. P - 9 is the admissible portion of the arrest panchnama. P. W. 9 further deposed that A-1 produced sickle, which was brought from his house, stating that he used the weapon at the time of the offence, and then, he seized the same under panchanama as per Ex. P - 10, and left the place at 6. 00 p. m. He deposed that he came to Tallaproddatur at 7. 00 p. m. , and sent the accused for remand and he had laid charge sheet on 15-10-1996. The investigating officer also was cross- examined at length. This witness deposed that the statement of P. W. 1 does not show that the deceased died in the hospital, and that he did not ascertain who accompanied the injured from the police to the hospital. He deposed that he did not go to the Botavia garden of the deceased. He further deposed that P. W. 2 did not tell him that either Gopal or himself went to the village and informed the offence to P. Ws. 3 and 4 and got a tractor to the scene of offence. This witness also deposed that P. W. 2 did not tell him that there was a quarrel between the children of a-1 and grandson of Gurrappa and in that connection the deceased beat A-1. This witness also deposed that P. W. 3 stated before him as in Ex. 3 and 4 and got a tractor to the scene of offence. This witness also deposed that P. W. 2 did not tell him that there was a quarrel between the children of a-1 and grandson of Gurrappa and in that connection the deceased beat A-1. This witness also deposed that P. W. 3 stated before him as in Ex. D-1, and P. W. 3 did not state before him that the wife of the deceased and the mother of the deceased came to the scene of offence and that P. W. 3 did not state before him that the deceased narrated the incident to his wife and that p. W. 4 did not state before him that P. W. 2 came and informed him about the incident. On the strength of this Ex. D-1 and the evidence of P. W. 3, submissions at length were made that even the evidence of P. W. 3 is not trustworthy in view of those material discrepancies. ( 18 ) ON appreciation of the whole evidence available on record, the evidence of P. Ws 1 and 2, who were just coming at a distance when the deceased was proceeding ahead of them, and the evidence of P. W. 4 who came running first just ahead of even P. W. 3, and others who came along with her, and also Ex. P - 3 recorded by P. W. 7 and the medical evidence supporting the version of the prosecution, it is no doubt true that the learned Sessions Judge also viewed ex. P-3 with suspicion and it is also true that the name of P. W. 4-Wife of the deceased was not specified in the said dying declaration. It is needless to say that the said dying declaration is said to have been recorded by P. W. 7-the then Sub-Inspector of police. ( 19 ) APART from this evidence, the evidence of P. W. 4 is available on record though the evidence of P. W. 3 to be viewed with some suspicion in view of the discrepancy in between Ex. D. 1 and the evidence of P. W. 3. P. W. 4 clearly and categorically deposed what had been explained to her by the deceased as to how the incident happened. This is the oral dying declaration available on record. May be p. W. 4 is the wife of the deceased. D. 1 and the evidence of P. W. 3. P. W. 4 clearly and categorically deposed what had been explained to her by the deceased as to how the incident happened. This is the oral dying declaration available on record. May be p. W. 4 is the wife of the deceased. It is also true that she had deposed in the cross- examination that several other villagers also gathered and they also heard what was stated by the deceased. It is also true that none of them had been examined. The evidence of P. W. 3 is available to some extent. Strong reliance was placed on heikrujam Chaoba Singh v. State of Manipur (1 supra) wherein it was held that"an oral dying declaration no doubt can form the basis of conviction, though the courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pass the scrutiny of reliability. The FIR also did not reveal about the injured making a declaration to the said p. W. 5. P. W. 5 was examined by the police after several days of the occurrence. Even according to him when the deceased in the hospital made declaration to him, there were several other persons present, yet it is not known as to why none of those people have been examined who could have been relied upon to corroborate the testimony of P. W. 5. P. W. 5 also is the brother of the deceased. The prosecution, therefore, has not examined several other disinterested persons though present when the deceased was making a declaration and chose only to examine the two interested persons. In the aforesaid premises, the conclusion is inescapable that no reliance can be placed on the testimony of P. W. 5. " ( 20 ) IN the present case, apart from the oral dying declaration of P. W. 4, the evidence of P. Ws 1 and 2 is also available on record. In the aforesaid premises, the conclusion is inescapable that no reliance can be placed on the testimony of P. W. 5. " ( 20 ) IN the present case, apart from the oral dying declaration of P. W. 4, the evidence of P. Ws 1 and 2 is also available on record. On the mere fact that the said evidence was viewed with suspicion by the learned sessions Judge, the appellate Court while independently appreciating the evidence of p. Ws 1 and 2, need not confirm the same finding, especially in the light of the fact that the evidence of P. Ws 1 and 2 is natural for the reason that it is not their case that they were along with the deceased, but it is their case that they were coming sufficiently at a distance and the deceased was going far ahead of them. That is the version of both p. Ws 1 and 2. What actually happened in fact had been narrated to P. W. 4. Ex. P - 3 recorded by the police officer-P. W. 7 is also available on record. ( 21 ) IN Laxmi v. Om Prakash (3 supra) the apex Court while dealing with the dying declaration and admissibility and test of reliability thereof and basing conviction on such dying declaration, the Apex Court held that,"the Court can look for corroboration if it suffers from infirmities and credibility does not depend upon number of dying declarations made in a case, nor on length of statement made by the deceased, the Supreme Court generally discourages recording of dying declaration by police officer, instead of Magistrate, except in cases where condition of deceased is so precarious that there remains no other alternative and the main test of reliability of a dying declaration is mental and physical fitness and capability to make the statement at that point of time. " ( 22 ) IN the present case, Ex. P-3 was recorded by P. W. 7-the then Sub-Inspector of police. It is pertinent to note that the time gap between the incident and the death is limited and hence, within such a short time, the investigating officer also had no opportunity to intimate to the concerned Magistrate requesting him to record the dying declaration and in such circumstances most probably, Ex. P-3 was recorded by P. W. 7. It is pertinent to note that the time gap between the incident and the death is limited and hence, within such a short time, the investigating officer also had no opportunity to intimate to the concerned Magistrate requesting him to record the dying declaration and in such circumstances most probably, Ex. P-3 was recorded by P. W. 7. It is no doubt true that there is some omission in Ex. P-3 relating to P. W. 4. But, in the light of the evidence of P. Ws 1, 2 and P. W. 4, coupled with the evidence of P. W. 3 which would substantiate the version of P. W. 4, the inconsistencies and infirmities pointed out by the learned counsel representing the appellants are not of such a nature by virtue of which, the trustworthiness of these witnesses can be totally discredited. Hence, this Court has no hesitation in believing the version of the prosecution. ( 23 ) HOWEVER, the findings at length had been recorded by the learned Sessions judge, while arriving at a conclusion that a- 1 is liable to be punished under Sec. 304 part II IPC and A-2 under Section 324 IPC. In the considered opinion of this Court, these reasons need not be disturbed and accordingly, the said findings are hereby confirmed. ( 24 ) HOWEVER, on evidence available, A-2 had been convicted under Section 324 IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for a period of one month. It is brought to the notice of this Court that A-2 suffered imprisonment for a period of about five months during remand and after conviction by the Court of Sessions. ( 25 ) IN the light of the findings recorded above, the conviction imposed by the learned Sessions Judge, Cuddapah in s. C. No. 40 of 1997 against the appellants- accused 1 and 2 on 06-10-1998 is confirmed and sentence awarded against them is modified as follows: (i) So far as A-1 is concerned, for the offence under Section 304 Part II ipc the sentence of imprisonment is hereby reduced to three years from four years and however, the imposition of fine is hereby confirmed. It is also brought to the notice of this Court that the fine amount had already been paid. It is also brought to the notice of this Court that the fine amount had already been paid. The bail bonds of A-1 shall stand cancelled. It is needless to say that a-1 shall serve the rest of the sentence and he is entitled to set off in accordance with law. (ii) So far as A - 2 is concerned, for the offence under Section 324 IPC the sentence of imprisonment is hereby reduced to five months from one year and however, the imposition of fine is hereby confirmed. The bail bonds of A-2 shall stand cancelled. Accordingly, the Criminal Appeal is dismissed subject to the above modification.