Judgment Shiva Kirti Singh and Syed Md.Mahfooz Alam JJ. 1. By the judgment under appeal dated 23.12.1987 passed by Sri B.N. Singh, Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 193/1983, all the three appellants have been convicted for the offence u/s. 302 read with Sec. 34 of the Indian Penal Code and have been awarded imprisonment for life. Three other co-accused, who faced the trial along with the appellants, have been acquitted by extending them the benefit of doubt. 2. The prosecution case, as appearing from the first information report lodged by Anullah Khan (P.W. 7), is in brief to the effect that on 28.11.1982 the informant and his brother-in-law (Bahnoi) Sk. Ashique (deceased) went to a place Marzadwa by 12 O clock train for a purpose stated in the F.I.R. and came back to Narkatiaganj Station on 29.11.1982 at 3.00 A.M. After getting down at the station they proceeded towards their house at village Deulia through path along with railway track going from Narkatiaganj to Raxaul and when they reached near the outer signal of Raxaul Railway line, the deceased noticed coal pieces lying amongst ashes discharged by a train and he started picking up the same. The informant sat down to pass urine. At about 4 A.M. two sons of Yasin Mian caught hold of the informant and Abdullah Ansari of Misrauli caused injury to the informant on head with Gransa. Younger son of Yasin also caused him an injury with Gransa on the head. Abdullah Ansari of Misrauli caused injury over his neck also. In the meantime, Abdullah of Deulia (appellant no. 1) and his brother-in-law (Sala), Yasin Mian (appellant no. 2) and Kasim Ansari (appellant no. 3) threw the deceased on the ground and all the three appellants started inflicting injuries to the deceased with Gupti while uttering to kill the deceased. On this the accused persons who had assaulted the informant went near the deceased Sk. Ashique and the accused persons dragged him across the railway line towards north and continued to assault him. The informant managed to flee away and raised Hulla after reaching village Deulia. On getting knowledge from the informant, Shekh Lateef (P.W. 5), Shekh Mustakeem (P.W. 4) and informants brother Sahfullah Khan (P.W. 3) went running to the place of occurrence and then the accused persons fled away. Sk. The informant managed to flee away and raised Hulla after reaching village Deulia. On getting knowledge from the informant, Shekh Lateef (P.W. 5), Shekh Mustakeem (P.W. 4) and informants brother Sahfullah Khan (P.W. 3) went running to the place of occurrence and then the accused persons fled away. Sk. Ashique (deceased) was carried to his home and thereafter he was taken to the hospital. At the hospital he was declared dead then the dead body was brought to the Police Station and from there to the Railway Police Station which had jurisdiction over the case. The reason for the occurrence is said to be marriage of the informant with daughter of Abdullah Ansari (appellant no. 1). This was disliked by Abdullah Ansari and he lodged a case of abduction and with the help of police of Shikarpur Police Station, the informants wife was taken away from his house and the informant had been sent to jail. He could come out from jail custody after two months and the case was still pending in Court. According to the informant, the accused persons wanted to kill him and marry the girl with some other persons. The informant had been living at Deulia with the deceased and was engaged in making "Biris" at Narkatiaganj. The deceased being Bahnoi of the informant had kept him in his house and was also doing pairvi in the case lodged against the informant and on that account the accused persons were bent upon to commit murder. The informant also claimed that he had received a letter from his wife regarding such intention of the accused persons. The informant also disclosed that appellants Kasim Ansari and Yasin Ansari are brother-in-law (Sala) of appellant Abdullah Ansari and other Abdullah Ansari (since acquitted) is brother-in-law (Bahnoi) of appellant no.1. 3. After instituting Narkatiaganj Rail P.S. Case No. 78/82, the Officer Incharge Parshuram Jha (P.W. 1) took up investigation. Since the dead body had been taken to the Police Station he prepared the inquest report (Exhibit 4). He inspected the place of occurrence as shown by the informant. He collected blood stained stones pieces and ashes from the place of occurrence and prepared a seizure list for the same which has been marked as Exhibit 1. Another seizure list (Exhibit 1/1) was also prepared by him showing seizure of (Baint) a part of Gupti. He inspected the place of occurrence as shown by the informant. He collected blood stained stones pieces and ashes from the place of occurrence and prepared a seizure list for the same which has been marked as Exhibit 1. Another seizure list (Exhibit 1/1) was also prepared by him showing seizure of (Baint) a part of Gupti. From the railway line upto a distance of about 10 yards towards north the Investigating Officer found trial of blood upto the place where the deceased was said to have fallen. The dead body was sent for post mortem examination After recording the statements of the witnesses and collecting post mortem report chargesheet was submitted against the accused persons. After cognizance the case was committed to the Court of Session and when the accused persons pleaded not guilty of the charge framed against them they were tried and by the judgment under appeal, the appellants were convicted and sentenced, as noticed above. 4. From the trend of the cross-examination, the defence of the appellants appears to be total denial of their involvement in the case and an attempt has been made to suggest that there was enmity between the deceased and the informant and due to that the informant might have committed the offence. However, no witness has been examined on behalf of the defence. 5. The prosecution in order to prove its case has examined altogether ten witnesses. Later on, Dr. B.K. Roy, who conducted autopsy was examined as Court Witness No. 1 and he has proved the post mortem report as Exhibit 6. Out of ten prosecution witnesses, P.Ws. 1 and 2 are formal witnesses who had signed the seizure list. Similarly P.Ws. 8 and 9 are also formal witnesses who had signed the inquest report. P.W. 3 Sahfullah Khan is the brother of the informant and P.W. 4 Shekh Mustakeem has been tendered for cross-examination only. P.W. 5 Shekh Lateef is the brother of the deceased. P.W. 6 Shekh Sharif is brother-in-law (Bahnoi) of the deceased and as noticed earlier, P.W. 7 Anullah Khan is the informant, a Sala of the deceased. 6. The names of P.Ws. 3, 4 and 5 find mentioned in the first information report as persons, who came running to the place of occurrence on getting information from the informant. They along with other persons carried injured Sk. 6. The names of P.Ws. 3, 4 and 5 find mentioned in the first information report as persons, who came running to the place of occurrence on getting information from the informant. They along with other persons carried injured Sk. Ashique to his home from where he was taken to the hospital, P.W. 3 has fully supported the prosecution case. He has deposed that on the date of occurrence at about 4 O clock in the morning he was sleeping in the house of the deceased and at that time the informant came crying upto the house of Sk. Ashique. He was having bleeding injuries on his head and his cloths were stained with blood. He disclosed about the assault on him as well as upon Ashique Mian. The witness went to the place of occurrence and found Adhique Mian crying in pain on account of the injuries. Shekh Lateef had also gone with him. On asking of Lateef, Ashique (deceased) disclosed the names of the assailants as the three appellants, two sons of Yasin and one Abdullah of Misrauli, brother-in-law (Bahnoi) of appellant no. 1. This witness joined in carrying Ashique to his home and then to the Narkatiaganj Hospital. Nothing material has been elicited from him in cross-examination. 7. P.W. 5 Shekh Lateef is a brother of the deceased and there can be no reason for his supporting a false case if the informant was responsible for causing death of his brother. He has fully supported the prosecution case. He came to know about the occurrence of assault upon the informant and his brother from the informant at about 4.30 in the morning. At that time the informant was injured and smeared with blood. This witness, his son Shekh Mustakeem, Shekh Sahfullah Khan (P.W. 3) and some others went to the place of occurrence and found Ashique in injured condition and crying in pain. On his asking Ashique disclosed that appellants Kasim Ansari and Yasin Ansari had assaulted him with Gupti and two sons of Yasin, appellant no. 1 Abdullah Ansari and his brother-in-law had also assaulted with weapons. While he was being taken to the hospital, Ashique died in the way. He was supported the alleged motive that on account of the informant marrying the daughter of appellant no.1 without his consent, there was enmity and the occurrence had taken place on that account. 1 Abdullah Ansari and his brother-in-law had also assaulted with weapons. While he was being taken to the hospital, Ashique died in the way. He was supported the alleged motive that on account of the informant marrying the daughter of appellant no.1 without his consent, there was enmity and the occurrence had taken place on that account. In his cross-examination he has given the details that till Ashique came to his house he was in his senses and thereafter a Tanga was brought and on the Tanga he was carried to the hospital and till he was being taken to the hospital he was conscious. On reaching hospital the doctor declared him dead. Nothing has been elicited in his cross-examination to discredit his deposition in support of the prosecution case. 8. P.W. 6 has also deposed on the same lines as P.W. 3 and P.W. 5. He also being a relation of the deceased cannot be expected to support a false case and if the suggestion of the defence that the informant had a hand in the death of the deceased could have any substance, this witness and P.W. 5 brother of the deceased would not have deposed that they found the informant in injured condition and when they went to the place of occurrence, the deceased was conscious and crying in pain and he disclosed the names of his assailants as already given out by the informant. There is nothing to doubt the veracity of P.W. 6 as witness. 9. P.W. 7 is the informant. He has supported the version given by him in the first information report and has described in detail the assault upon him and also upon the deceased. He has deposed in Court that Yasin and Kasim threw Ashique on the ground and they as well as appellant no.1 Abdullah Ansari seriously assaulted him with Gupti and thereafter the deceased was dragged by other accused persons towards north of the railway line. Thereafter the informant managed to escape and came to the village and disclosed the occurrence to the witnesses. He has deposed that after reaching the house of Ashique Mian, he was soaked in blood and soon thereafter he became unconscious. He also went to the hospital with Ashique and after getting himsel treated, went to the Rail Police Station where his fardbeyan was recorded. He has deposed that after reaching the house of Ashique Mian, he was soaked in blood and soon thereafter he became unconscious. He also went to the hospital with Ashique and after getting himsel treated, went to the Rail Police Station where his fardbeyan was recorded. He has proved his signature on the fardbeyan as Exhibit 3. He has also signature on the fardbeyan as Exhibit 3. He has also supported the alleged motive in his deposition in Court. He has been given suggestion in cross-examination that he had enmity with Ashique because in the case lodged against him for abduction of the daughter of appellant no.1, Ashique was a witness against him. He has denied knowledge of any such fact and thereafter the defence has failed to give any particulars of any such case or proceeding and failed to give any paper on record in support of such suggestion. He has clearly denied the suggestion of the defence that he was responsible for the alleged occurrence. 10. The evidence of the doctor (C.W. 1) and contents of the post mortem report (Exhibit 6) show that the deceased had received seven incised wounds on different parts of his body but none on the head and chest so as to cause instantaneous death. The injuries were found to have been caused by sharp penetrating weapon, such as, Gupti and the death had taken place within 12 hours of the post mortem examination which was conducted on 29.11.82 at 12.10 P.M. According to the doctor, the injuries were sufficient in the ordinary course of nature to cause death but injuries were not of such nature so as to cause instantaneous death. In cross-examination the doctor has stated that the person having received such injuries must be in shock and he would not be able to speak. On careful examination of the medical evidence it is found to be in support of the prosecution case and the last statement of the doctor in cross-examination regarding not being able to speak is clearly speculative and it is not his definite opinion that a person with such injury can in no case make any speech and cannot disclose the names of his assailants. 11. 11. The defence has laid much emphasis upon the aforesaid opinion of the doctor but on careful perusal of the injuries, their location and clear opinion of the doctor that the injuries could not have caused death instantaneously, we find no objective materials to hold that due to shock alone a person with such injuries can in no circumstance speak about the names of his assailants. 12. Learned counsel for the State has rightly placed reliance in this regard upon a recent judgment of the Supreme Court in the case of Gangaram Shantaram Salunkhe V/s. State of Maharashtra, 2007 2 SCC(Cri) 216. In that case while considering the submission assailing the veracity of the dying declaration on the basis of evidence of the doctor, who had opined that after sustaining wounds the deceased might have gone into an unconscious state instantaneously, the Supreme Court held that the doctor had stated only a possibility of deceased becoming unconscious instantaneously. The Supreme Court held that there is a difference between something being possible, something being probable and something being certain. We are also of the view that on the basis of the statement of the doctor as noticed above, it cannot be said with certainty that Sk. Ashique in injured condition while being still alive was certainly in no position to disclose the names of his assailants. On the other hand, on the basis of the details of injuries and their location, in this case we are of the view that there was every probability of Ashique being able to disclose the identity of the assailants to the witnesses, who are his close relations and have categorically stated that he was conscious till he was put on Tanga and taken to the hospital. Hence we find no substance in the submission advanced on behalf of the appellants that the dying declaration of the deceased in this case cannot be relied in view of the medical evidence. 13. In this case the defence has not challenged the time, place or manner of the occurrence. The only defence is that somebody else might have committed the offence. There is no challenge even to the motive which was alleged at the earliest opportunity and has been supported by the witnesses in Court. 13. In this case the defence has not challenged the time, place or manner of the occurrence. The only defence is that somebody else might have committed the offence. There is no challenge even to the motive which was alleged at the earliest opportunity and has been supported by the witnesses in Court. In such a situation, the only issue is-whether the evidence of the informant as corroborated by the witnesses including close relations of the deceased such as his brother (P.W. 5) and brother-in-law (P.W. 6) can be relied upon for holding that the appellants assaulted with Gupti at the alleged place and time of occurrence. On the basis of the evidence of the witnesses as already noticed, we find no difficulty in concurring with the opinion of the Trial Court that the prosecution has succeeded in proving the case against three appellants beyond reasonable doubts that they participated in the occurrence by assaulting the deceased with Gupti which fact is clearly given in the earliest version of the occurrence i.e. in the fardbeyan and which fact has been supported by the informant in Court and also by the dying declaration of the deceased as disclosed by his brother and brother-in-law as well as other witnesses. Thus, we find that although the actual assault upon the deceased was witnessed only by the informant P.W. 7 but there is nothing to discredit his testimony and on careful consideration of the entire facts and circumstances, we find it safe to rely upon his evidence which stands corroborated by the disclosure made by the deceased regarding his assailants before his death, to the witnesses. 14. In view of aforesaid discussions, the judgment under appeal is affirmed and the conviction and sentence awarded to the appellants are confirmed. We find no merit in the appeal. Hence, the same is dismissed. It appears that all the three appellants are on bail. Their bail bonds are hereby cancelled. They should be taken into custody forthwith so that they may serve out the remaining sentence in accordance with law.