JUDGMENT A. Hazarika, J. 1. This Criminal Appeal is directed against the Judgment in Sessions Case No. 73(T) of 1999 passed by the Sessions Judge, Tinsukia, whereby the accused appellant Lingu Orang has been convicted under Section 302 IPC for causing death of one Sukhram and sentenced to imprisonment for life and fine of Rs. 500 in default, further imprisonment for two months. 2. We have heard Ms. N. Hawelia, learned Amicus Curiae appearing for the accused appellant and Mr. B.S. Sinha, learned P.P., Assam. 3. The prosecution case as unfolded in the FIR lodged by one Birsa Munda is that at about 7-00 A.M. on 24.9.98 he came to know from the a nearby people, that some unknown persons have killed his younger brother Sukhram Munda aged about 35 years, by cutting him with a dao on his head and body. It was also stated in the FIR that the deadbody had been lying in front of the house of Malua Santu who is also a resident of the same area. 4. On receipt of the FIR, the police registered Doomdoma P.S. Case No. 282/98 under Section 302IPC and proceeded with the investigation. During the course of investigation, the Investigating Officer visited the place of occurrence, recorded the statements of witnesses, prepared the sketch map vide ext. 4, made Inquest report vide Ext. 1 and thereafter oh completion of investigation submitted charge sheet under Section 302 IPC. 5. The case being exclusively triable by the court of Sessions, the learned Judicial Magistrate, Tinsukia by order dated 25.5.1999 committed the case to the court of Sessions. The learned Sessions Judge, Tinsukia, on the materials available on record framed charges under Section 302/34 IPC against accused Lingu Orang, Chakra Orang and Raju Benjamin. The charge being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. 6. During the course of trial, learned Sessions Judge examined as many as 10 witnesses produced by the prosecution including the Medical Officer and the Investigating Officer. The defence did not adduce any evidence. The appellants in answer to the questions put to them under Section 313 Cr.P.C. pleaded not guilty. Thereafter, the learned Sessions Judge by the impugned judgment convicted the appellant as aforesaid arid acquitted Chakra Orang and Raju Benjamin for want of evidence against them. 7. The defence did not adduce any evidence. The appellants in answer to the questions put to them under Section 313 Cr.P.C. pleaded not guilty. Thereafter, the learned Sessions Judge by the impugned judgment convicted the appellant as aforesaid arid acquitted Chakra Orang and Raju Benjamin for want of evidence against them. 7. PW 9 is the doctor who had performed the post mortem examination on the deadbody of Sukhram and found the following injuries: 1. Incised wound in the left auxiliary region of size 15 x 2 cm, muscle deep. 2. One incised wound in the left wrist joint anterior side of 7 x 1 cm, cutting bone in that area. 3. One incised wound in the right wrist joint anterior side of 8 x 1 cm, cutting the bone in that area. 4. One incised wound in the right parietal region of the scalp of 10 x 1 cm, bone cut, brain matter out. 5. One incised wound in the left parietal scalp of 7 x 1 cm, bone cut, brain matter out. 6. Skull: Bone cut in the injury 4 and 5. Membrane: cut in the injury 4 a and 5. 7. Thorax: All healthy. Heart: healthy and empty. Abdomen: All healthy. In the opinion of the doctor the death was due to shock and haemorrhage as a result of antemortem injuries sustained from heavy cutting weapon and injuries are homicidal in nature. The Doctor also opined that injuries Nos. 1, 2, 3, 4 and 5 are individually sufficient to cause death in the ordinary course of nature. Ext. 3 is the post mortem report and Ext. 3(1) is the signature of the Doctor. There is no dispute that Sukhram succumbed to the injuries c sustained by him, as opined by PW 9. The evidence of PW 9, read with inquest report (Ext. 1) also establishes the cause of death of Sukhram. The Medical Evidence has not been challenged and we find that the doctor was not cross-examined at all. 8. In view of the above, we find that the trial court rightly held this to be a case of homicidal death. 9. In the present case, there is only one eye witness Shri Dubraj Hemrang (PW 1), who is a teacher by profession. PW 1 deposed that on 23.9.1998, on the date of occurrence, he was sitting at Verandah of the house of his nephew Mangla Mura. 9. In the present case, there is only one eye witness Shri Dubraj Hemrang (PW 1), who is a teacher by profession. PW 1 deposed that on 23.9.1998, on the date of occurrence, he was sitting at Verandah of the house of his nephew Mangla Mura. It was evening, when he heard Sukhram, the deceased called "Saru, Saru". Sukhram was his relative. He also heard sounds of beating. Sukhram was beaten by Lingu Orang, but PW 1 did not see any weapon. PW 1 further deposed that, he saw the occurrence from a distance of 17 ft. He saw Sukhram fell down. Accused Lingu Orang, Raju Benjamin and Chakra Orang fled away from the place of occurrence. Sukhram told him that he was beaten by Lingu. Injured Sukhram died a short while after and immediately thereafter PW 1 informed the line Chowkidar of the Garden, Hira Singh Chetri. PW 1 also informed several persons about the incident. Police held inquest over the deadbody. Ext. 1(1) is the signature of PW 1 in the Inquest report. During the cross examination, PW 1 deposed that he did not see with what the accused persons had beaten Sukhram. 10. PW 2, Sukhdeo Lajra deposed that he heard cries of Sukhram shouting "Saru Saru" from inside the house. He saw three persons were fleeing from the place of occurrence but he did not recognise those persons and also he did not go to the place of occurrence. However, PW 2 was declared hostile by the prosecution. 11. PW 3, Hira Singh Chetri deposed that PW 1 informed him that someone had cut a person but he did not tell who had cut whom. He saw the deadbody of Sukhram at the place of occurrence. On the following day, he told about the occurrence at the office. He further deposed that he did not know who had cut Sukhram. PW 3 was also declared hostile by the prosecution. While examined by the prosecution, the PW 3 deposed that he told the Investigating Police Officer that Dubraj, PW 1 had told him the name of the deceased and the accused persons. PW 3 was not cross-examined by defence. 12. PW 4 is a hearsay evidence and as such his evidence is of no value. 13. PW 5, Sona Barju deposed that at the time of occurrence Sukhram shouted "Saru, Saru". PW 3 was not cross-examined by defence. 12. PW 4 is a hearsay evidence and as such his evidence is of no value. 13. PW 5, Sona Barju deposed that at the time of occurrence Sukhram shouted "Saru, Saru". He heard the shouts from his house, but he did not come out from his residence. On the following day, he saw the deadbody of Sukhram in the place of occurrence with injuries in his head but he did not know who cut Sukhram. This witness has been declared hostile by the prosecution. When examined by the prosecution PW 5 stated that he did not tell the Investigating Police Officer that he had seen the accused persons chasing Sukhram and cut him with dao and then flew. PW 5 was also not cross-examined by the defence. 14. PW 6, Birsa Chamura is the first informant who is the younger brother of Sukhram. PW 6 did not see the occurrence. Only on the following day of the occurrence, in the morning, he received the information of Sukhram's death. He saw Sukhram's deadbody. There was cut injuries on the body of the deceased but he has specifically stated that he did not know who cut Sukhram. 15. PW 7, Lakhman Prasad Sharma is the driver of the Ambulance belonging to the garden. He took the deadbody in the Ambulance as instructed by the Manager of the Garden. 16. PW 8, Ghanakanta Bora took charge as Officer-In-Charge of the Doom Dooma Police Station on 16.12.1992. His predecessor R.K. Gogoi registered the case on 24.4.1998. After going through the CD he found that the investigation has almost been completed and, therefore, having collected the post mortem report he submitted the charge sheet. 17. PW 10, Atul Gogoi is the Investigating Officer. On 23.9.98 he was posted at Doom Dooma P.S. and on that date R..K. Gogoi was the Officer- in-Charge, who on receipt of Ext. 2 (FIR), registered a case and endorsed it to PW 10 for investigation. During investigation, he visited the place of occurrence and found the dead body of the deceased. He held inquest and sent the dead body for post mortem examination. He also examined the witnesses, prepared sketch map of the place of occurrence, and arrested the accused persons. On completion of the investigation, he has submitted the charge sheet against accused Chakra, Lingu and Rajesh. He held inquest and sent the dead body for post mortem examination. He also examined the witnesses, prepared sketch map of the place of occurrence, and arrested the accused persons. On completion of the investigation, he has submitted the charge sheet against accused Chakra, Lingu and Rajesh. PW 10 further deposed that witness Sukhdeo, Lajra and Sona Barju stated before him that the three accused chased Sukhram from some distance and then killed him assaulting with dao. Witness Hira Singh, stated that he was told by Dubraj that the accused persons killed the deceased after chasing him to some distance. 18. Thus, we find in this case that, there is evidence of the eye witness (PW 1) and the oral dying declaration of the deceased made before the PW 1, soon after the incident and prior to his death. In the cross-examination of PW 1, the eye witness, we find that the defence tried to give some suggestion about some land dispute of PW 1 with one Shankar Orang. These are not at all relevant for the purpose of deciding the guilt of the accused. We have perused the record of the case to ascertain the truthfulness of the statements made by the sole eye witness PW 1. We have found that, the statements made by PW 1 before the Investigating Officer, under Section 161 Cr.P.C., immediately after the occurrence, under Section 164 Cr.P.C. before the Magistrate and the statements made, before the court are in same tune, there is no contradiction; rather in the statements made under Section 161 Cr.P.C., PW 1 specifically stated that the occurrence was witnessed by Sukhdeo Lajra, Sona Barju and many others of the line, but out of fear they did not disclose it. Sukhdeo Lajra, PW 3 declared hostile by the prosecution and Sona Barju PW 5 deposed that he did not see who cut Sukhram. But the Investigating Officer, PW 10, when confronted with the earlier statements made before the Investigating Officer by PW3 and PW 5, he stated as follows: Witness Sukhdeo Lajra and Sona Barju stated before me that the three accused chased Sukhram to some distance and they killed him assaulting with dao. Unfortunately, having given the statements about the facts/within their knowledge under Section 161Cr.P.C., recorded during investigation, PW 3 and PW 5 resiled from the statements made earlier before the Investigating Officer. Unfortunately, having given the statements about the facts/within their knowledge under Section 161Cr.P.C., recorded during investigation, PW 3 and PW 5 resiled from the statements made earlier before the Investigating Officer. But, PW 3 and PW 5 have not given any reason as to why the Investigating Officer could record statements contrary to what they had disclosed. In State of U.P. v. Ramesh Prasad Misra reported in 1996 CriLJ 4002, the Apex Court has clearly laid down that, portion of the evidence of hostile witnesses, which is consistent with prosecution or defence case can be accepted. Fact, that they resiled from their earlier statement made under Section 161 Cr.P.C. without giving any reason as to why the Investigating Officer would record statement under Section 161 Cr.P.C. incorrectly, raises doubts on their subsequent versions in favour of the accused. From the statements made by PW 3 and PW 5 as quoted above, amply a prove that three accused persons including the appellant, killed Sukhram by assaulting with dao. 19. There is also nothing on record to show that PW 1 was interested in the cause of the prosecution or inimically deposed towards appellant. Indeed it was not even suggested to him in the cross-examination that he was deposing falsely. It is also pertinent to note that PW 1 is the most natural and probable witness as the incident took place in his courtyard. He further deposed that at the time of occurrence Sukhram shouted "Saru" "Saru" and this fact is found to be consistent with the testimony of PW 5. PW 3 also deposed that, he told the Investigating c Officer that, PW 1 had told him the name of the deceased and the accused. PW 1 was cross-examined at length, but nothing could be elicited from him to dislodge his testimony. Thus, the evidence of PW 1 clearly establishes that it was the accused who inflicted the injury to the deceased with dao. 20. Mr. B.S. Sinha, learned P.P., while supporting the judgment of learned Sessions Judge strenuously argued that, PW 1 is a teacher by profession and there is no cause for making false statement against the accused persons. The defence could not prove that there was any enmity between the PW 1 and the accused persons for which he will make such false statements. The defence could not prove that there was any enmity between the PW 1 and the accused persons for which he will make such false statements. There is nothing in his cross-examination which can be of any assistance to the defence. In fact, the statement made by him in his examination-in-chief remains unassailed and thus no interference with the judgment of conviction is called for. 21. Learned amicus curiae has submitted that conviction cannot be based on the evidence of the solitary eye witness. 22. Coming to the question of conviction on the evidence of solitary witness, the law is more or less well settled that, the conviction can be based on the evidence of solitary eye witness. In the case of Anil Phukan v. State of Assam 1993 CriLJ 1796 and in Marwadi Kishore Parmanand v. State of Gujrat [1994] 3 SCR 1, the Apex Court held that, if the evidence of solitary eye witness is found to be reliable, conviction can be based on the evidence of sole eye witness as stated above. In a later case of Sheelam Ramesh and Anr. v. State of A.P. reported in 2000 CriLJ 51, the above ratio of law was reiterated, wherein at para 18, the Apex Court observed that courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence. In the instant case P.W. 1 has deposed in clear and unambiguous terms about the incident and his evidence stand unimpeached in cross examination and thus we find no reason to doubt the testimony of the eye witness. 23. In this case, over and above the eye witness (PW 1), there is also dying declaration of the deceased made before the PW 1. 24. Learned amicus curiae has submitted that the alleged dying declaration is not a dying declaration as per law as such the same cannot be relied upon. 26. The principle on which dying declarations are admitted in evidence is indicated in legal maxim - Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth. 27. Regarding acceptability of dying declaration, the Supreme Court in AIR 1992 SC 1817 has held as follows: 16. 26. The principle on which dying declarations are admitted in evidence is indicated in legal maxim - Nemo moriturus proesumitur mentiri - a man will not meet his Maker with a lie in his mouth. 27. Regarding acceptability of dying declaration, the Supreme Court in AIR 1992 SC 1817 has held as follows: 16. The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 17. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The court, must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Manju Raja v. State of U.P. 1976 CriLJ 1718). The rule requiring corroboration is merely a rule of prudence. The court has laid down in several judgments the principles governing dying declaration, which could be summed up as under: (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Manju Raja v. State of U.P. 1976 CriLJ 1718). (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. v. Ram Sagar Yadav 1986 CriLJ 836, Ramavati Devi v. State of Bihar 1983 CriLJ 221). (iii) This Court has to scrutinize the dying declaration carefully and must ensure, that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Rama Chandra Reddy v.Public Prosecutor 1976 CriLJ 1548). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v.State of Madhya Pradesh 1974 CriLJ 361). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. Kake Singh v. State of M.P 1982 CriLJ 986 . (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC 581). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v.Krishnamurthi Laxmipati Naidu). (viii) Equally, merely because it is a brief statement it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of State of Bihar 1979 CriLJ 1122). (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State 1988 CriLJ 936). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan). 28. (Nanahau Ram v. State 1988 CriLJ 936). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan). 28. In the instant case, it would be significant to note that, apart from dying declaration made before PW 1, the eye witness, PW 1, immediately after the occurrence told PW 5, the name of the accused persons. In the statement made before the Investigating Officer, under Section 161 Cr.P.C., the PW 1 stated the name of the accused persons. Apart from it, this dying declaration is only a corroborating circumstances in support of the evidence of the eye witness. 29. Having considered the entire evidence on record, more particularly evidence of PW 1, the eye-witness, we hold that it was the accused- appellant who killed the deceased and as such his conviction and sentence awarded by the learned trial court needs no interference. 30. In the result, we find that there is no merit in this appeal and the appeal is dismissed. 31. The fee of the learned amicus curiae is fixed at Rs. 3,000. 32. Send down the case records. Appeal dismissed