S.P. KUKDAY, J.:- Appellant is sentenced to suffer imprisonment for life for commission of offences punishable under section 302 of Indian Penal Code by Additional Sessions Judge, Nanded; by order dated 21st March, 2003. This order of conviction and sentence is challenged by the appellant in the present appeal. 2. Facts relevant for the purpose of to this appeal are that, Wahidabegum (P.W.10) in lives at Biloli with her sons Sk. Farid, Abdul he Jabbar (P.W.1) and Abdul Gaffar (since " deceased). Appellant was living with his parents at Biloli in the same 'lane. The deceased and appellant were taking education at Arjapur college. There was a quarrel between them at the time of gathering of the college. P.W.1 secured a job in the office of Ravi Kodge and shifted to Nanded in the year 1994. The deceased had completed a course at Kohinoor Institute, Nanded. On 6th June, 2001 the deceased had come to Nanded for collection his certificate from the Institute. On that day at about 1.30 p.m. near water tank of Gurudwara Trust, appellant assaulted the deceased with knife. A scooterist saw the incident arid reported it to Traffic Constable Balaji Lokhande (P.W.8). Sham Chavan, a Traffic Warden was also on duty at this place with P.W.8. Both of them went to the scene of the occurrence on the motorcycle of P.W.8. At the scene of the occurrence, they found that constable Babar had already come there. When P.W.8 made a query, the deceased informed him that Satyaprakash Dahiwale has assaulted him. The two constables took the deceased to the hospital in the auto-rickshaw of Gajanan Pathak. At the hospital Dr. Nussarat Jilani (P.W.13) recorded history. The deceased informed him that he was assaulted by Satyaprakash Narayan. On examination, P.W.13 found that the deceased had suffered five stab wounds and was in critical condition. He started the treatment and relayed the information to Police Station Vajirabad. On receipt of the intimation, A.S.I. Kelkar (P.W.7) came to the hospital for recording statement of the deceased. However by that time condition of the deceased had worsened, thus, he could not record the statement. In the meanwhile, P.W.8 found a diary with the deceased having a telephone number of Biloli. He contacted this number. The call was answered by P.W.10. The constable informed her about the incident. P.W.10 thus contacted P.W.1 and asked him to attend the hospital. In the meanwhile, P.W.8 found a diary with the deceased having a telephone number of Biloli. He contacted this number. The call was answered by P.W.10. The constable informed her about the incident. P.W.10 thus contacted P.W.1 and asked him to attend the hospital. When P.W.1 made inquiries, the deceased also informed him that he was assaulted by Satyaprakash Dahiwale. While he was under treatment, the deceased expired at about 5.00 p.m. P.W.7 then held inquest on the dead body and prepared Panchanama (Ex.I5). He sent the dead body for post-mortem. The postmortem was performed by Dr. Rajendra Kagne (P.W.12). The doctor found that the deceased had sustained five stab wounds. On account of the cutting of the Peritoneum and liver, there was 3200 C.C.S. of blood in peritoneum cavity. The autopsy surgeon prepared post-mortem report (Ex.31) and opined that the death had taken place account of shock due to stab injuries. 3. After the death of his brother, P.W.1 went to Vajirabad Police Station and lodged a report against the appellant, A.P.1. Kudale Patil (P.W.2) recorded the report and handed it over to P.S.I. Vasundhara Borgaonkar (P.W.4) who registered offence against the appellant under section 302 of the Penal Code. The investigation was then taken over by ADPO Sanjay Banargee (P.W.14). The investigating officer deputed police officers to arrest the appellant and visited the spot. On his visit to the scene of occurrence, the investigating officer found that the soil was disturbed indicating that there was scuffle between the deceased and the appellant. There was blood on the ground. He collected sample of blood stained soil and control soil under Panchanama (Ex.18). Clothes of the deceased produced by P.W.7 were attached under seizure memo (Ex.54). The appellant was produced before the investigating officer at about 9.30 p.m. His blood stained clothes were attached under seizure If memo (Exh.53). As the appe1iant had sustained injuries on his right hand, he was sent to the hospital. At the hospital, P.W.13 examined the appellant. Appellant had minor injuries on the middle finger and palm of his right hand. 4. On 9th June, 2001, the appellant made a confessional statement (Ex.55) and produced a dagger from the bush at the scene of the occurrence. The dagger was attached under seizure memo (Exh.56). At the hospital, P.W.13 examined the appellant. Appellant had minor injuries on the middle finger and palm of his right hand. 4. On 9th June, 2001, the appellant made a confessional statement (Ex.55) and produced a dagger from the bush at the scene of the occurrence. The dagger was attached under seizure memo (Exh.56). Articles seized during the course of the investigation with the sample of the blood of the deceased collected by the medical officer, were sent to the Forensic Laboratory, Aurangabad. Report of the Chemical Analyzer (Ex.58, 59 & 60) were received. Report (Ex.59) disclosed that blood of the deceased was on the clothes of the appellant. There was human blood on the dagger and slippers of the appellant. On completion of the investigation, charge-sheet was submitted to the court. 5. At the trial, the appellant adopted defence of total denial, claiming that he was subjected to beating. During beating he fell down and suffered injuries to his right hand. 6. The prosecution has examined as many as 14 witnesses in support of the prosecution case. P.W.1 is the brother of the deceased. On receipt of the information he went to the hospital. In reply to his queries, the deceased informed him that he was assaulted by the appellant. On the demise of his brother P.W.1 lodged F.I.R. with Vajirabad Police. 7. P.W.2 recorded F.I.R. (Ex.12) and handed it over to P.W.4 for registration of the offence, P.W.4 registered the offence and entrusted the investigation to P.W.2. However, in view of the instructions of P.W.14 the investigation was handed over to him. 8. Jaikishan Pathan (P.W.3) is the panch to Inquest Panchanama. Rajesh Kendre (P.W.5) and Madan Suryawanshi (P.W.6) are witnesses to the spot panchanama (Ex.18). Both of them have correctly given the location of the spot and referred to the collection of blood stained soil as well as the control soil. However, they introduced the fact that a piece of glass was also attached from the spot. Thus, both of them are declared hostile and are cross-examined by the P.P. to impeach their credit. 9. P.W.7 went to the hospital on receipt of the information from P.W.13 for recording statement of the deceased but could not do so. On the death of the victim, he held inquest on the dead body and sent it for the postmortem. Thus, both of them are declared hostile and are cross-examined by the P.P. to impeach their credit. 9. P.W.7 went to the hospital on receipt of the information from P.W.13 for recording statement of the deceased but could not do so. On the death of the victim, he held inquest on the dead body and sent it for the postmortem. He then produced clothes of the deceased which were attached by P.W.14 under seizure memo (Ex.54). 10. P.W.8 and P.W.9 are the Traffic Constables on duty near the scene of the occurrence. On receipt of the information from a scooterist, they went to the spot on the motorcycle of P.W.8. They found that constable Babar has already come there. At the spot, in response to the query of P.W.8, the deceased informed them that Satyaprakash Dahiwale had assaulted him with knife. Both of them took the deceased to the hospital. At the time of examination by P.W.13, P.W.8 was present. In his presence the deceased disclosed to the medical officer that the appellant had assaulted him with knife. No material contradiction or omission is brought on record during the cross-examination of P.W.8. 11. P.W.10 is the mother of the deceased. She states that on receipt of the telephonic message from P.W.8, she instructed P.W.1 to attend the deceased at the hospital. Later on she had come to the hospital on demise of her son. 12. Mohammad Sajid Ali (P.W.11) has a canteen at Arjapur College, Biloli. He states that at the time of gathering of the college in the year 1997, there was a quarrel between the deceased and the appellant. 13. Dr. Rajendra Kagne (P.W.12) is the autopsy surgeon. He performed the postmortem and noticed following internal and external injuries: External iniuries : 1) Incised wound of 31/2 cm x 0.5 cm x 0.5 x muscle deep at right hypochondriac region, 12 cm below right nipple, reddish, oblique. 2) Stab wound of 3 cm x 0.5 cm cavity deep, wedge shaped oblique, situated in 6th intercoastal space left hypochondriac region. Evidence of clean cut to upper border of 7th rib, reddish. On dissection directed medially inwards and after cutting peritoneum entering the left lobe of liver. Evidence of oblique cut to liver of 21/2 cm x 1/3 cm x 2 cm. Evidence of clean cut to upper border of 7th rib, reddish. On dissection directed medially inwards and after cutting peritoneum entering the left lobe of liver. Evidence of oblique cut to liver of 21/2 cm x 1/3 cm x 2 cm. Margins clean cut (Depth up to liver 51/2 cm.) 3) Stab wound of 3 cm x 0.5 cm into cavity deep wedge shaped oblique, situated 4 cm below and medially to injury No.2 of Col. 17. On dissection directed slightly upwards inwards and medially. Entering abdominal cavity after cutting peritoneum and then cutting stomach (2 cm x 1/4 cm) (Depth up to stomach 6 cm.) 4) Incised wound of 12 cm x 0.5 cm x muscle deep, reddish, 2 cm below and lateral to injury No.2, oblique extending towards back left side. 5) Incised wound of 4 cm x 0.5 cm x muscle deep at 7 cm suprolateral to left anterior superior illiac spine, reddish, oblique. Internal injuries : 1) Injury as mentioned in col.17. Evidence of haemoperitoneum 3200 cc blood. Evidence of food particles in the vicinity of stomach. 2) Evidence of cut to stomach as mentioned in Col.17. Evidence of cut to liver as mentioned in Col.17. All organs were pale. 14. The autopsy surgeon prepared postmortem notes (Ex.32) and opined that the death is caused on account of the shock due to the stab injuries. 15. Dr. Nussarat Jilani is the medical officer on duty at the hospital. On admission of the patient he recorded history given by the patient that he was assaulted by knife by Satyaprakash Narayan. He noticed five stab injuries which tally with the injuries mentioned in the postmortem report. He informed Vajirabad Police about the MLC and started the treatment. The patient expired at 5.00 p.m. The medical officer also examined the appellant at 10.10 p.m. and noticed following injuries on his right hand: 1) Small sharp edged wound on palm about 1/2 x 1/4 x 1/4 cm; 2) Small sharp edged wound on middle phalange of finger about 1/2 x l/4 x l/4cm. 16. The medical officer issued injury certificate (Ex. 50) 17. ADPO (Rural) Shri. Sanjay Banarjee (P.W.14) is the investigating officer. 16. The medical officer issued injury certificate (Ex. 50) 17. ADPO (Rural) Shri. Sanjay Banarjee (P.W.14) is the investigating officer. He speaks of the preparation of the spot panchanama (Ex.18), arrest of the accused on 6th June, 2001 at 9.30 p.m., seizure of the clothes of the deceased and the appellant and the discovery of the weapon on the basis of the confessional statement of the appellant on 9th June, 2001. No damaging admission, improvements or contradictions are brought on record during his cross-examination. 18. On appreciation of the evidence, repelling the contention that some other person committed murder of the deceased, based on the mistake committed by P.W.13 in recording name of the assailant as Satyaprakash Narayan, learned Trial Judge found that the dying declarations made by the deceased to P.W.8, P.W.9 and P.W.13 are substantiated by tlie detection of the blood of the deceased on the clothes of the appellant, detection of human blood on the dagger discovered on the basis of his confessional statement and injuries on the right hand palm and middle finger of the appellant. In conformity with these findings, the Trial Judge convicted the appellant of the offence punishable under section 302 of the Penal Code and sentenced him to imprisonment for life and fine of Rs.5,000/- with default stipulation for non payment of fine, as stated earlier. 19. In support of the appeal, learned Counsel Shri. Jondhale has mainly emphasized on the fact of non-examination of material witness constable Babar and reliability of alleged oral dying declaration. Learned Counsel would argue that constable Babar reached the scene of the occurrence ahead of P.W.8 and P.W.9, thus, he could have testified to the condition of the appellant at the relevant time and about the alleged oral dying declaration. His non-examination has resulted in causing serious prejudice to the appellant. Continuing the criticism of the oral dying declaration, it is argued that as the deceased was not fit to make statement, P.W.7 could not record statement of the deceased at 2.45 p.m. Considering nature and seriousness of the injuries and the fact that the deceased had suffered a shock, it is obvious that he could not have made any statement to the police constables or to the medical officer on duty. The fact that P.W.9 had not referred to mother of the deceased being contacted on telephone by P.W.8 would show the tendency of these witnesses to make improvement in their evidence. All these factors make it unsafe to rely on the evidence of P.W.8; P.W.9 and P.W.13 in respect of the alleged dying declaration. It is further contended that the discovery of the weapon is not established by proving the seizure memo through Panch witness, thus, the evidence of discovery has to be discarded. In support of his contentions, learned Counsel has placed reliance on the decisions of the Supreme Court reported in AIR 1954 SC 51 and AIR 1995 SC 2345 . 20. Learned A.P.P. Shri. Shinde; would argue that there can be no impediment in finding conviction on the basis of oral dying declaration as can be seen from the decision of the Apex Court reported in (2005)13 SCC 387 . In the present case, the Trial Judge has pragmatically assessed evidence of the prosecution witnesses and has given cogent reasons for rejecting the points raised by the appellant before this Court. Considering the totality of the evidence, it is not necessary to interfere with the order of conviction and sentence passed by learned Trial Judge. 21. In the present case, the prosecution mainly relies on oral dying declaration. The law on this point is well settled. Verbal statement of the person as to the cause of his death stands on the same footing as written statements. Communication by gestures, are also included in the verbal statements. The factors to be considered for assessing reliability of the oral dying declaration are, the fitness of the maker to make a coherent statement, the circumstances in which the statement is made, proof of the exact words of the maker and the possibility of false implication. If conscience of the court is satisfied as to the reliability of the oral statement, there can be no impediment in finding a conviction on the basis of such a dying declaration. In Ramavati Devi Vs. If conscience of the court is satisfied as to the reliability of the oral statement, there can be no impediment in finding a conviction on the basis of such a dying declaration. In Ramavati Devi Vs. State of Bihar (AIR 1983 se 164) it is observed in para 7 of the report : 3 "A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section 32 the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case." 22. In Ghanshyam Das Vs. State of Assam, (2005)13 SCC 387 , at page 389 while dealing with oral dying declaration, the Apex Court observed : "The most incriminating evidence in this case is the dying declaration made by the deceased to P.W.4. After uttering the words that Ghanshyam "cut him" the victim became unconscious. It may be recalled that PW.4 was with the deceased till they parted company to go to their respective houses and within a few minutes thereafter, the incident had happened. There is absolutely no reason why P.W.4 would come forward to give a false version to implicate the accused. The oral dying declaration made to P.W.4 believed by the trial Court as well as by the High Court. In the FIR lodged without delay, the oral dying declaration was specifically mentioned." 23. The law laid down is very clear. If the statement of the declarant as to the cause of his death or the transaction which resulted in his death, is admissible in evidence and conviction can be based on verbal dying declaration if it satisfies the conscience of the court regarding its reliability. 24. In the present case, the prosecution has examined three witnesses to prove oral dying declaration of the deceased. All of them are strangers to the victim as well as the accused. They have absolutely no interest in the success or failure of the prosecution. 24. In the present case, the prosecution has examined three witnesses to prove oral dying declaration of the deceased. All of them are strangers to the victim as well as the accused. They have absolutely no interest in the success or failure of the prosecution. P.W. and P.W.9 are the traffic police officers who were admittedly on duty near the scene of occurrence. Their presence at the time of making of the statement by the deceased is natural. Nothing has been brought on record during the cross-examination of these witnesses to impeach their credit. Both of them have stated in no uncertain terms that when P.W.8 questioned the deceased about the assault on him, the deceased spontaneously replied that Satyaprakash Dahiwale had stabbed him. It is not in dispute that the appellant was previously living in the same lane with the deceased at Biloli and was studying with him at Arjapur College. Thus, there is no possibility of mistaken identification of his assailant by the deceased. Evidence of these witnesses is substantiated by another independent witness P.W.13 who was on duty at the Government Hospital, Nanded. P.W .13 states that the deceased had given history of assault by Satyaprakash Narayan. Taking advantage of the mistake in noting the name of the father of the assailant by P.W.13, it is argued before the Trial Court, as well as this Court that, identity of the assailant is not established by the prosecution. However, the fact that blood of the deceased was found on the clothes of the appellant and the weapon discovered on the basis of the confessional statement of the appellant, does establish that the deceased referred to the appellant and the appellant alone. Referring to the admission of P.W.I3 that the blood pressure of the deceased was not recordable, the admission of autopsy surgeon that once the patient goes in hemorrhagic shock, he can not regain consciousness without medical treatment and the fact that P.W.7 could not record statement of the deceased, it is sought to be argued that the deceased was not in a position to make a statement. These contentions can not be sustained for a simple reason that the admissions are founded on the premise that the deceased was in hemorrhagic shock and was in such a condition that he was unable to make a statement. The premise itself is unfounded. These contentions can not be sustained for a simple reason that the admissions are founded on the premise that the deceased was in hemorrhagic shock and was in such a condition that he was unable to make a statement. The premise itself is unfounded. P.W.13 has stated in clear terms that the deceased was conscious and was giving name of his assailant. The reason for not recording the statement by P.W.7 is not that the deceased was unconscious. The reason is clearly recorded by P.W.13 in the case papers of the deceased (Ex.51) where it is mentioned that the patient is delirious, drowsy and unable to give the statement, as he is just telling the name of the person who has assaulted him but not the reason for the assault. It can, therefore, be seen that the deceased till last was repeating the name of his assailant. In this view of the matter, it is not possible for us to accede to the contention that the deceased was not in a fit state of mind to make coherent statement. The evidence of P.W.8, P.W.9 and P.W.13 on the point of verbal dying declaration of the deceased is impeccable and deserves credence. 25. Learned Counsel for the appellant has argued that there are some discrepancies in the evidence of P.W.8 and P.W.9 regarding communication of the information to the relatives of the deceased. It is submitted that the communication by P.W.S was to the sister in law of the deceased and not to the mother. Omission from the statement of P.W.9 regarding the telephonic communication is highlighted to contend that the witness has made improvement in his evidence which casts a shadow of doubt on the veracity of the evidence of the prosecution witnesses regarding oral dying declaration. This assertion is too farfetched to accept. Whether the telephonic communication by P.W.8 was to the mother of the deceased or to his sister in law, is wholly inconsequential and can not in any manner affect the evidence of P.W.8, P.W.9 and P.W.13 regarding the dying declaration. Apart from this the fact that P.W.8 has not made improvement over his statement recorded under section 161 of the Cr.P.C.; nullifies the effect of improvement, if any, by P.W.9. It is further argued that the nonexamination of constable Babar has caused prejudice to the appellant. Apart from this the fact that P.W.8 has not made improvement over his statement recorded under section 161 of the Cr.P.C.; nullifies the effect of improvement, if any, by P.W.9. It is further argued that the nonexamination of constable Babar has caused prejudice to the appellant. Thus, evidence on the point of the dying declaration has to be discarded. For this proposition reliance is placed on the decision of the Apex Court in Habeeb Mohd. Vs. State of Hyderabad, 1954 SCR 475 , at page 504. The contention based on this decision is totally misconceived. In that case Their Lordships have made it clear that the rule broadly stated in Ram Ranjan Roy Vs. Emperor is not fully accepted. The proper approach is that all the material witnesses should be examined by the prosecutor in all fairness to the parities as the prosecutor represents the people and not the State. It is observed at page no.504 : "In a long series of decisions the view taken in India was, as was expressed by Jenkins, C.J., in Ram Ranjan Roy Vs. Emperor 3, that the purpose of a criminal trial is not to support at all costs a theory but to investigate the offence and to determine the guilt or innocence of the accused and the duty of a Public Prosecutor is to represent not the police but the Crown, and this duty should be discharged fairly and fearlessly with a full sense of the responsibility attaching to his position and that he should in a capital case place before the court the testimony of all the available eye-witnesses, though brought to the court by the defence and though they give different accounts, and that the rule is not a technical one, but founded on common sense and humanity. This view so widely expressed was not fully accepted by Their Lordships of the Privy Council in Stephen Senaviratne Vs. The King 2, that came fro Ceylon, but at the same time, Their Lordships affirmed the proposition that it was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of the events on which the prosecution is essentially based and that the question depended on the circumstances of each case." 26. This decision supports the principle that the evidence is to be weighed and not counted. This decision supports the principle that the evidence is to be weighed and not counted. Plurality of the witnesses is not necessary for establishing a relevant fact. It also recognizes the principle that it is the sole prerogative of the prosecutor to decide the number of witnesses to be examined with the rider that all the material witness should be examined regardless of the fact whether their evidence favour the prosecution or the accused. In the present case, Constable Babar had come to the spot earlier than P.W.8 and P.W.9, however, he did not take initiative in making inquiries with the deceased and taking him to the hospital. Thus, he could not have given evidence regarding further development at the hospital. In this view of the matter, the decision of the prosecutor not to examine him, as three material witnesses were already examined, can not be faulted. There is nothing on record to show that the non-examination of Constable Babar has caused any prejudice to the appellant. In this view of the matter, we can not persuade ourselves to accede to the contention that non-examination of Constable Babar affects veracity of the evidence of other prosecution witnesses on the point of verbal dying declaration. 27. It is next argued that the evidence regarding the discovery of the weapon of the assault has to be discarded as the confessional statement of the appellant and discovery Panchanama have not been proved by the panch witnesses. There can be no dispute about the proposition that these two documents can not be read in evidence unless they are proved by the panchas. However, Section 27 of the Evidence Act does not lay down a rule that the confessional statement of the accused has to be recorded only in presence of the witnesses. Recording of the confessional statement of the accused in presence of independent witness is a rule of prudence and not a legal requirement. In appropriate cases it is permissible to rely on the evidence of the investigating officer, unless it is shown that he acted in a biased manner. In the present case, the appellant was arrested on the day of the incident at about 9.15 p.m. As he had sustained injuries, he was immediately sent to the hospital for giving medical aid. In appropriate cases it is permissible to rely on the evidence of the investigating officer, unless it is shown that he acted in a biased manner. In the present case, the appellant was arrested on the day of the incident at about 9.15 p.m. As he had sustained injuries, he was immediately sent to the hospital for giving medical aid. This fact is established by the evidence of P.W.13 that he examined the appellant at 10.10 p.m. and by the fact that the blood stained clothes of the appellant" were attached under seizure memo (Ex.53) at 10.15 p.m. Report of the Forensic Laboratory discloses that blood of the deceased of 0' group was found on the clothes of the appellant. In these circumstances, in view of the fact that no bias is attributed to the investigating officer, in our considered opinion, there can be no hesitation in accepting evidence of the investigating officer regarding discovery of the weapon used for the commission of the offence. In support of his contention, learned counsel has placed reliance on the ruling of the Apex Court in Jaskaran Singh Vs. State of Punjab (AIR 1995 se 2345). The contention based on this decision is misconceived. This conclusion is substantiated by the observations of the Apex Court in Golkonda Venkatswara Rao Vs. State of A.P. (2003)9 SCC 277 ). In para 14 of the report, it is observed: "In Jaskaran Singh case the recovery memo Ext.P-9/A relates to revolver and catridges. There the appellant had denied the ownership of the crime revolved and the prosecution had led no evidence to show that the crime weapon belonged to the appellant. The observation of this Court was in that context. In the instant case, as already noticed, the recovery is pursuant to the disclosure statement offered by the appellant. The fact that the recovery is in consequence of the information given is fortified and confirmed by the discovery of wearing apparel and skeletal remains of the deceased which leads to believe that the information and the statement can not be false." 28. Every case has to be decided on the particular facts of that case. In the present case we have already explained that the evidence of the discovery is reliable. Every case has to be decided on the particular facts of that case. In the present case we have already explained that the evidence of the discovery is reliable. In this view of the matter, we can not subscribe to the contention that in the absence of the evidence of panch witnesses the evidence of discovery has to be discarded. 29. Considering the totality of the circumstances, in our considered opinion, evidence of the prosecution witnesses regarding the verbal dying declaration is trustworthy. We thus, do not find any fault with the finding of guilt of the appellant recorded by learned Trial Judge. We, therefore, confirm the order of conviction and sentence passed by the Trial Court. In the result, the appeal fails and is dismissed accordingly. 30. In view of the dismissal of the appeal, Criminal Application No.2408 of 2003 does not survive and is disposed off accordingly. Appeal dismissed.