JUDGMENT : B.P. Ray, J. - This criminal appeal is directed against the judgment and order of conviction dated 17.9.1997 passed by learned Second Addl. Sessions Judge, Berhampur in S.C. Case No. 7 of 1997 convicting both the Appellants u/s 302/34 I.P.C. and sentencing them to undergo imprisonment for life along with a fine of Rs. 500/- each and in default to undergo R.I. for two months and further sentencing them to undergo R.I. for a period of six years for offence Under Sections 307/34 I.P.C. and R.I. for three years u/s 27 of the Arms Act read with Section 34 of the Indian Penal Code, directing that all the sentences shall run concurrently. The Appellants in this appeal challenge the aforesaid conviction and the sentences passed by the court below. 2. The prosecution case in brief is that on 5.5.1995 at about 8.30 P.M. while the deceased Kamadev Nayak and his son Tukuna @ Sukadev Nayak were sitting on the front verandah of their house and the informant Saraswati Nayak (P.W.3) was cutting fish for the purpose of cooking, one Bibhuti Naik of their street came and shouted that Appellant Dillip Naik had come to their street and he is standing near doctor Majhi's clinic. On hearing hullah, deceased Kamadev Naik and his son Sukadev Naik called the sahi people to catch hold the accused Dillip Naik. As no body turned out, Kamadev Naik and his son Sukadev Naik proceeded towards Patasalia Sahi and the wife of the deceased also followed them. When the informant reached at Patasalia Sahi chak, she found Appellants Dillip Naik and Kalu Nayak were coming from Patasali Street Park towards them. On seeing Sukadev, both the Appellants ran towards him and while Sukadev was in front of the house of Lingaraj Patro Appellant Kalu Naik fired towards Sukadev twice from his pistol and Sukadev having sustained bleeding injuries oh his person and fell down there. Thereafter, both the Appellants namely Kalu Naik, Dillip Naik and the absconder accused Hari Das came near the place where Sukadev was lying and gave him kicks and abused him saying "Mor Sala". After some time Sukadev got up and wanted to run away from the place of occurrence, accused Dillip Naik threw a bomb at him. As a result of which he fell down infront of the house of one Nageswara Achari. After some time Sukadev got up and wanted to run away from the place of occurrence, accused Dillip Naik threw a bomb at him. As a result of which he fell down infront of the house of one Nageswara Achari. Then both the Appellants i.e. Dillip Naik and Kalu Nayak fired at the deceased Kamadev from their pistols as a result of which deceased Kamadev fell down infront of the house of Nageswar Achari. Absconder accused Hari Das also threw a bomb at him. Out of fear the informant raised a cry and called the sahi people. When the sahi people came both the Appellants and absconder accused Hari Das ran away towards Patasalia Sahi. Thereafter, Jagannath Naik and Drusta Naik of their street brought one tempo and removed them to the hospital. After some time Police arrived at the spot and the informant lodged oral information about the incident which was reduced into writing by the O.I.C. Kabi Surjya Nagar P.S. On the basis of the said report, Police registered a case Under Sections 307/34 I.P.C. and Under Sections. 25(a)/27 Arms Act/9(b) of the Indian Explosive Act and Section 3(i)(x) of S.C. and S.T. (P.A) Act. The said report was registered as Kabi Surjya Nagar P.S. Case No. 38/1995 under the aforementioned sections. Firstly deceased Kamadev and injured Sukadev were taken to Kabi Surja Nagar P.H.C. Since the condition of Kamadev Naik was very serious, on the requisition of I.O., the doctor P.W.1 recorded the statement of deceased Kamadev Naik. As the conditions of both the injured persons were serious, the doctor referred them to M.K.C.G. Medical College & Hospital, Berhampur for treatment. While both the injured persons were being sent by Jeep to M.K.C.G. Medical College & Hospital, Berhampur, on the way deceased Kamadev Naik succumbed to the injuries and Sukadev Naik was admitted in M.K.C.G. Medical College & Hospital. After the death of injured Kamadev, case turned to u/s 302 I.P.C. On the next day morning the police came and made inquest over the dead body and sent it for post mortem examination. 3. In order to prove its case the prosecution has examined as many as 14 witnesses. P.W.1 is Rajani Kanta Das, the Medical Officer of K.S. Nagar P.H.C. who had given first aid to the injured persons and had recorded the dying declaration of deceased Kamadev Naik. 3. In order to prove its case the prosecution has examined as many as 14 witnesses. P.W.1 is Rajani Kanta Das, the Medical Officer of K.S. Nagar P.H.C. who had given first aid to the injured persons and had recorded the dying declaration of deceased Kamadev Naik. P.W.2 is Bangali Naik who is a witness to the inquest over the dead body of the deceased but this witness was declared hostile by the prosecution, P.W.3 Saraswati Naik, the wife of deceased Kamadev Naik and mother of injured Sukadev Naik. P.W.4 is injured Sukadev Naik. P.W.5 is Subal Naik another witness to the occurrence. P.W.6 is doctor Siba Prasad Patnaik, the resident Surgeon of M.K.C.G. Medical College Hospital who medically examined injured Sukadev Naik. P.W. 7 is Dr. Sachidananda Mishra the Associate Professor and H.O.D. of Cardiothorasic of M.K.C.G. Medical College Hospital, Berhampur who had opined the nature of injury No. 4 found on the person of injured Sukadev naik. P.W.8 is Krushna Chandra Pradhan the then constable attached to K.S. Nagar P.S. who had accompanied the dead body to post mortem house and had received the wearing apparels of the deceased Kamadev from the P.M. doctor and handed over the same to the I.O. at the P.S. for seizure. P.W.9 was the O.I.C. of K.S. Nagar P.S. who had taken charge of investigation from the previous I.O. and had sent material objects to R.F.S.L. through court. P.W. 10 was the Scientific Officer attached to D.F.S.L., Chatrapur who had visited the spot and had collected blood stained earth and sample earth from the spot and had also collected the remnants of exploded bombs and jacketed bullet from the spot and handed over the same to the I.O. for seizure. P.W.11 is Nalini Ranjan Mohanty, the I.O. P.W.12 is the doctor P.C. Sahu, Lecturer, F.M. & T, M.K.C.G. Medical College Hospital who had conducted P.M. examination over the dead body of the deceased Kamadev Naik and P.W.13 is Subas Chandra Swain, the then C.I. of Police Chatrapur who had taken charge of investigation and submitted charge sheet against the accused persons and P.W.14 is Banabasi Naik the then A.S.I., K.S. Nagar P.S. who had conducted inquest over the dead body of the deceased Kamadev Naik. Defence has examined four witnesses on their behalf. 4. Defence has examined four witnesses on their behalf. 4. In order to bring home the charge, prosecution mainly relies upon the dying declaration of the deceased Kamadev Naik recorded by P.W.1 and the evidence of P. Ws. 3, 4, and 5 and the post mortem report. P.W. 6 is the doctor, who gave treatment and P.W. 12 is the doctor who had conducted the post mortem examination over the dead body of the deceased on 6.5.1995 and has found five tattooing injuries on the right side chest, right thigh and right forearm on left axial and on left forearm and one contusion on left elbow joint, two punctured wounds on the right side abdomen at the root of the pennies and one lacerated wound on the abdomen of the deceased. The opinion of the doctor is that all the injuries found on the dead body were ante mortem in nature and the tattooing injuries were caused by blasting effects and the punctured and penetrating wounds were caused by firearm and the cause of death was due to shock and haemorrhage caused by bullet injuries and the time since death was within 18 to 20 hours. The post mortem report marked as Ext. 12. Injured Sukadev Naik was medically examined by P.W.6. On his examination he found two abrasions on his right supra clavicular fossa and on right lumber region and one lacerated injury on the left side neck on the lateral side and one penetrating chest injury on the right side of the chest and a fracture on the right clavicle caused by hard and blunt object and the fractured injuries were grievous in nature and the said report is marked as Ext.5. The opinion of P.W.6 is that penetrating injury is possible by gun shot and on cross examination he opined that the penetrating injury may also be possible by a sharp pointed weapon and according to him, the lacerated injury and the fractured injury found on the person of Sukadev Naik can not be possible by gun shot or by blasting of bomb. P.W.7 is the Professor and H.O.D. of Cardiothoracic Surgery who was the treating physician of injured Sukadev Naik. On perusal of injury report Ext.6, the opinion of the doctors P. Ws.6 and 7 are that the injured Sukadev Naik had sustained injuries on his person and one of such injuries was possible by gun shot. P.W.7 is the Professor and H.O.D. of Cardiothoracic Surgery who was the treating physician of injured Sukadev Naik. On perusal of injury report Ext.6, the opinion of the doctors P. Ws.6 and 7 are that the injured Sukadev Naik had sustained injuries on his person and one of such injuries was possible by gun shot. 5. Mr. Panda, learned Counsel for the Appellants strenuously submitted that the so called eye witnesses are interested eye witnesses and relations of the deceased. Therefore, no reliance can be placed on their evidence and such evidence can not stand in the scrutiny of law. There is material contraction in the statement of the eye witnesses. Therefore, the conviction based on such material contradiction can not stand in the scrutiny of law. There is material contradiction in the evidence of eye witnesses regarding the place of occurrence, time of occurrence and manner of occurrence, therefore the impugned judgment and order of conviction is unsustainable. Mr. Panda further submitted that the condition of the deceased was such that he could not have given statement. Therefore, the so called dying declaration has been procured by the police from P.W. 1 at their instance. The evidence of eye witnesses P. Ws. 3, 4 and 5 do not tally with the medical evidence. Learned Addl. Govt. Advocate on the other hand submitted that the witnesses examined are natural witnesses to the occurrence and the dying declaration recorded by the doctor is trustworthy and is material evidence against the Appellants. In view of the submissions made by the counsel for the Appellants as well as for the prosecution, let us examine the materials on record. 6. The prosecution has mainly relied upon the dying declaration of deceased Kamadev Naik recorded by P.W. 1 and the evidence of occurrence witnesses who are P. Ws. 3, 4 and 5 and also the evidence of doctors i.e.P. Ws. 6 and 12, who have medically examined and conducted post mortem examination. The dying declaration was recorded by Doctor R.K. Das. (P.W.1), who has proved the L.T.I. of Kamadev Naik and the dying declaration was recorded by him. 3, 4 and 5 and also the evidence of doctors i.e.P. Ws. 6 and 12, who have medically examined and conducted post mortem examination. The dying declaration was recorded by Doctor R.K. Das. (P.W.1), who has proved the L.T.I. of Kamadev Naik and the dying declaration was recorded by him. In the said dying declaration, it has been categorically mentioned that Appellant Kalu Naik has fired at the belly of the deceased and Appellant Dillip Naik fired at the thigh and the absconder accused Hari Das threw a bomb at the deceased and the place and time of occurrence tally with the prosecution case. P.W.1 has further stated that when the deceased and P.W.4 were brought to the P.H.C., their conditions were serious and on police requisition, he recorded the dying declaration after giving First-aid. The dying declaration is trustworthy and the Court was satisfied after careful scrutiny that the dying declaration is true and free from any effort to prompt the deceased to make such statement and is coherent and consistent. There is no legal impediment in founding the order of conviction on the basis of such dying declaration. It is necessary that it should be recorded by a Gazetted Officer or a Magistrate. In the instant case the condition of the patient was serious and there is no time to record the statement in the format provided. Therefore, the dying declaration recorded by P.W. 1 appears to us truthful and is sufficient to base a conviction without any further corroboration. There is no requirement of law that it should be recorded in the form of question and answer and the dying declaration recorded by the doctor appears to us as true and voluntary. The same, as has been elicited by the defence in the cross examination of P.W. 1, is as follows: I took about half an hour for giving preliminary treatment to the patients and after that I recorded the dying declaration of the injured Kamadev. No Executive Magistrate or Gazetted Officer was available at the relevant time. P.W.3, who is the wife of the deceased and informant in this case and P.W.4, who is the son of the deceased had accompanied the deceased to the place of occurrence. They have categorically stated regarding the firing and throwing of bombs. P.W.5 is the nephew of the deceased. Their evidence is almost consistent with the medical evidence. P.W.3, who is the wife of the deceased and informant in this case and P.W.4, who is the son of the deceased had accompanied the deceased to the place of occurrence. They have categorically stated regarding the firing and throwing of bombs. P.W.5 is the nephew of the deceased. Their evidence is almost consistent with the medical evidence. The learned Sessions Judge after going through the evidence of medical witnesses and after close examination of the evidence on record, has found that the evidence of P. Ws. 1, 2, 3, 4 and 5 lead the evidence of the doctors P. Ws.6 and 12 that both the Appellants have fired from their respective pistols at P.W.4 and deceased Kamadev Naik in furtherance of their common intention and the said assault has caused the death of the deceased. Therefore, the prosecution has been able to bring home the charge u/s 302/34 I.P.C. and u/s 307/34 I.P.C. against the Appellants beyond all reasonable doubt. Further the prosecution has also proved the offence u/s 27 of the Arms Act against both the Appellants. Accordingly, we do not find any merit in the impungned judgment and order of conviction. Accordingly, the appeal is devoid of any merit and the same is dismissed. Final Result : Dismissed