JUDGMENT : P.K. Tripathy, J. - Appellants are the accused in S.T. No. 25 of 2000 of the Court of the Additional Sessions Judge, Boudh arising out of Harabhanga P.S. Case No. 39 of 1999 and G.R. Case No. 385 of 1999 of the Court of the S.D.J.M., Boudh. The impugned judgment was delivered on 15.02.2001 and the present accused-appellants were found guilty for the offence u/s 302/34 of the Indian Penal Code. They were accordingly convicted and sentenced to imprisonment for life. The co-accused i.e. 5th accused, Chakradhar Mallick has been faced the same trial u/s 302/34 of the Indian Penal Code and was however, granted an order of acquittal on the ground of lack of evidence against him. That judgment and order of conviction is under challenge in this appeal by the convicted accused persons. 2. It reveals from the lower court records that the prosecution case is that Kishore Chandra Behera, the deceased was having land dispute with the accused persons. On 05.09.1999 the deceased went to village Gochhabadi to purchase rice. At about 8 A.M. while he was returning after purchasing rice, as alleged by the prosecution, the accused persons attacked and assaulted him. According to the prosecution, at that time accused Sudarsan and Duryodhan were armed with lathies, accused Bhima was having a knife and accused Bhagaban was having a falsia i.e. an axe. It is further alleged by the prosecution that in course of assault, accused Bhagaban inflicted injuries on the right hand, left leg and head of the deceased, accused Bhima inflicted injuries on the right eye below the eyelid and accused Sudarsan and accused Duryodhan dealt lathi blows. The axe was being differently named like falsia, tabla and farsa, but that indicates to only one weapon i.e. an axe. When the occurrence of assault took place there was no eyewitness around but hearing the hullah, P.W. 2 Ranjita Behera (daughter of the deceased) and P.W. 3 Urmila Behera (wife of the deceased) rushed to the spot and found the accused persons being so armed and on seeing them (witnesses) they ran away from the spot. P. Ws.2 and 3 went and took care of the deceased and on their asking the deceased, who was in sense, narrated about the assault on him by the aforesaid accused persons in the above indicated manner and also asked them to take him to hospital. P. Ws.2 and 3 went and took care of the deceased and on their asking the deceased, who was in sense, narrated about the assault on him by the aforesaid accused persons in the above indicated manner and also asked them to take him to hospital. The other co-villagers arrived there and with their help the deceased was first taken to the house and then from there he was carried towards hospital. P.W. 1, Sitaram Behera is the brother of the P.W. 3. On getting information from one Binod Sahoo about the occurrence of assault by the accused persons in the above indicated manner he rushed to the house of the deceased. There he was informed by P.W. 3 that the deceased in injured condition was being carried to the hospital i.e. Banigochha Primary Health Centre. He followed and could reach them near village Gandapaju. There he found the deceased being in sense and was capable to speak in feeble voice. On being asked by P.W. l the deceased narrated about the assault on him by the aforesaid four accused persons in the above indicated manner. Before they could reach the hospital, the deceased succumbed to the injuries and therefore, on the advice of the villagers, who were carrying the deceased in injured condition, he (P.W. 1) went and reported the matter at Harabhanga Police Station. By the time, he reached the police station, only one Constable was present and, therefore, he took the help of one Khadiratna, who scribed the report for him. After arrival of the Police, Officer, P.W. 7, the F.I.R. Ext.5 was accepted and P.S. Case was registered. Later on, Officer-in-Charge of the Police Station (P.W. 8) on coming to the Police Station, took charge of the investigation. P.W. 5 is the Doctor, who conducted post-mortem examination on the dead body of the deceased and proved the postmortem report Ext. 2. Ext.1 is the inquest report Exts. 3, 4, 6, 7 and 9 to 13 are different seizure lists relating to seizure of incriminating materials. Ext. 15 is the forwarding letter of material objects to S.F.S.L. and Ext. 16 is the report from the S.F.S.L. Amongst the seized materials the axe was marked as M.O.I and one Sisu Lathi (Lathi made of Rose wood) was marked as M.O.II. 3. While denying the charge u/s 302/34 Indian Penal Code, the accused persons claimed for trial. Ext. 15 is the forwarding letter of material objects to S.F.S.L. and Ext. 16 is the report from the S.F.S.L. Amongst the seized materials the axe was marked as M.O.I and one Sisu Lathi (Lathi made of Rose wood) was marked as M.O.II. 3. While denying the charge u/s 302/34 Indian Penal Code, the accused persons claimed for trial. They also put a defence plea that while returning after purchasing rice, at the spot the deceased fell down from the bicycle and went down below the culvert (Bridge) and, therefore, he sustained the injuries. In other words, their defence plea is that the deceased sustained injuries due to fall and not due to any assault by any of the accused persons. In support of their defence, they examined two witnesses, namely, D.W.1, Laba Pradhan and D.W.2, Patita Pradhan. They deposed that at about 8.00 A.M. they could see the bicycle of the deceased partially hanging to the bridge and on looking down, they found the deceased in an injured condition in the paddy flied. 4. Learned Additional Sessions Judge, relying on the evidence of P.W. 5 recorded the finding that the deceased suffered homicidal death. In that respect, he did not give any credence to the opinion of P.W. 5 given in cross-examination that the deceased could have suffered the injuries because of fall from the bicycle. He found the defence plea totally devoid of merit to make out such a case. 5. Learned Additional Session Judge, took note of two vital evidence, i.e. evidence of P. Ws. 2 and 3, who stated in their evidence that they saw the accused persons with weapons, decamping from the spot and the accused was lying with injuries and the other evidence is relating to the dying declaration made before them implicating the accused persons as the author of the injuries. In the above context, learned Additional Sessions Judge, again found the opinion of P.W. 5 brought in the cross examination not worthy of credence when P.W. 5 stated that after receiving the injury Nos. 6 and 7, i.e. the head injuries one cannot speak and he would become senseless immediately. In the above context, learned Additional Sessions Judge, again found the opinion of P.W. 5 brought in the cross examination not worthy of credence when P.W. 5 stated that after receiving the injury Nos. 6 and 7, i.e. the head injuries one cannot speak and he would become senseless immediately. Learned Additional Sessions Judge assigned the reason that the theoretical opinion of P.W. 5 is not based on any positive reasons, whereas, the stamina of the deceased could have retained him in sense and capable of speaking as narrated by P. Ws.1, 2 and 3. Learned Additional Sessions Judge found the other circumstantial evidence like the inquest report, seizure of weapons of offence, report of S.F.S.L. etc, to be corroborative evidence to give credence and credibility to the evidence of P. Ws. 1, 2 and 3. Accordingly, he found the accused persons guilty of inflicting the injuries and causing murder of the deceased. 6. Learned Counsel for the Appellants argues that the dying declarations proved through P. Ws. 1, 2 and 3 is unacceptable on the face of evidence of P.W. 5. He further argues that P. Ws. 2 and 3 could not have witnessed any part of the occurrence or seeing accused persons at the spot inasmuch as in the F.I.R. it has been stated that they went to the spot after getting information from the village girls. In that respect, his further argument is that the statement in F.I.R. and the evidence of P. Ws. 2 and 3 are contradictory, inasmuch as in Court P. Ws 2 and 3 stated that on hearing hullah, they proceeded to the spot. He argues that there is a material discrepancy in the evidence of P. Ws. 2 and 3, but Learned Counsel on being asked, is unable to point out any such contradictions. In summing up his submissions in the above-indicated manner and relying on the ratio in the case of Uka Ram Vs. State of Rajasthan he argues to grant the benefit of doubt and acquit the accused persons. 7. Learned Standing Counsel on the other hand, repels the aforesaid contentions of the Appellants and argues that there is no contradiction in the evidence of P. Ws. 1, 2 and 3. The opinion of P.W. 5 cannot be regarded as gospel truth, when the circumstance emerging on record, i.e. from the F.I.R. and the evidence of P. Ws. 7. Learned Standing Counsel on the other hand, repels the aforesaid contentions of the Appellants and argues that there is no contradiction in the evidence of P. Ws. 1, 2 and 3. The opinion of P.W. 5 cannot be regarded as gospel truth, when the circumstance emerging on record, i.e. from the F.I.R. and the evidence of P. Ws. 1, 2 and 3 are sufficient to prove that deceased was in sense and was capable of making statements. In that respect, he relies on the case of Sham Shankar Kankaria v. State of Maharashtra (2006) 35 OCR (SC) 435. Learned Standing Counsel further argues that whether or not the dying declaration is accepted as credible evidence, the evidence of P. Ws. 2 and 3 about seeing the accused persons in armed conditions and decamping from the spot, where the deceased was lying with injuries, gives the absolute proof of the complicity of the accused persons with the alleged crime and, therefore, the finding recorded by the Trial Court requires no disturbance. Accordingly, he argues to dismiss the Criminal Appeal. 8. Though, there is no argument by the Appellant, disputing to the finding recorded by the Trial Court on the homicidal death of the deceased, yet keeping in view the submissions made on the dying declaration, it is appropriate to quote the evidence of P.W. 5: 1. On 7.9.99 I was medical officer L.T.R.M.O. Dist. Headquarters hospital Boudh. On - that day on Police requisition at 9 A.M. I conducted post mortem examination of over the dead body of Kishore Chandra Behera S/O-Nakula Behera of Vill. Geradamunda and found as follows. External Injuries:- 1. One cutting wound of size 6" x 1 and half inch x one and half inch situated over the anterior aspect of left knee joint. 2. One cutting wound of size 3" x 1" x 1" over the cap-muscle of right leg. 3. One bruise of size 1" x 1" over the right leg one inch below the right knee joint. 4. One lacerated wound of size 1" x 1/4" x1/4" over the right side face just below the right eye. 5. One cutting wound of size 2 1/2" x 1/2" to bone deep over the parietal region of the mid line of the scalp. 6. One cutting wound of size one inch x half inch x bone deep over the right parietal eminents. 7. 5. One cutting wound of size 2 1/2" x 1/2" to bone deep over the parietal region of the mid line of the scalp. 6. One cutting wound of size one inch x half inch x bone deep over the right parietal eminents. 7. Redish brown colour of size 6" x 3" patch over the lower part of the right chest wall. 8. One brown colour patch of size 8" x 2" over the left side of back two inch below the angle of the left scapula. 9. One bruise of size 2" x 2" just below the left ear level. 10. One cutting wound at right elbow joint separating the right fore-arm from the right upper arm and only attached by skin tag. (2) Cause of death:- is due to multiple injuries with hemorrhage and shock. Time since death is 48 hours. The injuries are ante mortem in nature. (3) The dead body accompanied by Constable Rama Chandra Suna and Gram Rakhi and his relations. (4) Ext.2 is my report and Ext. 2/1 is my signature. In the ordinary course of nature death can be caused due to the above injuries. (5) The cutting injuries can be possible by Pharsa like M.O.I. Cross Examination:- (6) After receiving the injuries No. 6 and 7, i.e the head injuries one cannot speak and he will become senseless immediately. All the injuries may be possible by fall from the cycle on the ridge of the road and tripledown to the field having sharp stones and broken glass pieces from a considerable height. (7) I have not mentioned in P.M. Examination report that the death was homicidal. 9. It appears from the above quoted evidence that there was incised wound of 2 1/2" x 1/2" to bone deep on the parietal region on the mid line of the scalp and another incised wound of 1" x 1/2" x bone deep on the right parietal eminent. We feel that because of confusion, the Doctor has mentioned them to be injury Nos. 6 and 7 (in paragraph-6 of his deposition), though it should be injury Nos. 5 and 6. Notwithstanding the fact that P.W. 5 opined that after receiving injuries on the head, one cannot speak and would be senseless immediately, but he has not given any reason for such opinion. 6 and 7 (in paragraph-6 of his deposition), though it should be injury Nos. 5 and 6. Notwithstanding the fact that P.W. 5 opined that after receiving injuries on the head, one cannot speak and would be senseless immediately, but he has not given any reason for such opinion. There is nothing on record to indicate that the medical jurisprudence mandates like that i.e. in conformity with the opinion of P.W. 5. It has been rightly held by learned Additional Sessions Judge that on sustaining such injury, one mayor may not become senseless and that depends on the resistance capacity of the person, who suffers the injury. Thus, we do not find any illegality or incorrectness in the finding recorded by the learned Additional Sessions Judge on accepting the prosecution case about homicidal death and rejecting the contentions of the Appellants that the deceased could not have made dying declaration. 10. Another circumstance that should be taken note to find credibility in the evidence of P. Ws. 2 and 3 is that according to the prosecution, there was no eyewitness to the occurrence and the presence of the accused persons at the scene of occurrence was only seen by P. Ws. 2 and 3, who decamped on seeing these two witnesses. Nonetheless, P. Ws. 2 and 3, not only could speak about the manner of assault on the relevant part of the body of the deceased by the respective weapons, but also that was corroboratingly stated to P.W. 1 by the deceased and thereafter only the F.I.R. was lodged. The narration of events and about the manner in which blows were inflicted by each of the accused persons stated in the F.I.R. lends sufficient strength to the submissions of the prosecution that the deceased was capable of making dying declaration or else manner of assault by each accused could not have been known to P. Ws. 1 to 3. For the reasons indicated above, we find that the dying declaration in this case is acceptable. 11. At this juncture, it is appropriate to refer to the citations relied on by the parties. In the case of Uka Ram (Supra) the dying declarations of an insane lady was accepted by the Trial Court and the Appellate Court. Therefore, their Lordships of the Supreme Court held that: 12. 11. At this juncture, it is appropriate to refer to the citations relied on by the parties. In the case of Uka Ram (Supra) the dying declarations of an insane lady was accepted by the Trial Court and the Appellate Court. Therefore, their Lordships of the Supreme Court held that: 12. After going through the whole of the evidence, perusing the record and hearing the submissions of the Learned Counsel for the parties, we are of the opinion that the prosecution had not proved, beyond, doubt, that the dying declaration was true, voluntary and not influenced by any extraneous consideration. Despite knowing the fact that the deceased was a mental patient, the investigating agency did not take any precaution to ensure that the incident was suicidal or homicidal. The probability of the deceased committing suicide has not been eliminated. There also exist a doubt about the mental condition of the deceased at the time she made dying declaration (Exhibit. P-27). Exhibit P-26, the medical certificate only states to her physical condition to make a statement but does not refer to her mental condition even at that time. The trial as well as the High Court appear to have ignored this aspect of the matter while convicting and sentencing the Appellant. We are satisfied that it is a fit case in which the Appellant is entitled to the benefit of doubt." 13. We find the aforesaid ratio not applicable to the facts and circumstances of the present case. On the other hand, in the case of Sham Shankar (supra), the Apex Court considering Some what identical facts situation and after analyzing threadbare the meaning and value of dying declaration propounded that a dying declaration if found credible is to be relied upon and at that time the Court must analyse the evidence to satisfy itself that it is safe to act upon such dying declaration being free from imagination. At the risk of repetitions we reiterate that on the analysis of facts and circumstances made by the trial Court and by this Court, the dying declaration made by the deceased to P. Ws. l, 2 and 3 are found to be credible and acceptable. 14. Be that as it may, even if exclusion of dying declaration from the evidence of P. Ws. l, 2 and 3 are found to be credible and acceptable. 14. Be that as it may, even if exclusion of dying declaration from the evidence of P. Ws. 2 and 3 clearly indicates that they saw the accused persons present at the spot being armed in various manner (as already stated) and on seeing these two witnesses they left the spot of occurrence and on reaching the spot which was at a short distance, both these witnesses discovered the deceased lying with multiple injuries on his body. In that respect P. Ws. 2 and 3 narrate about the number of injuries found on each part of the body of the deceased and that description tallies with the injuries found on the dead body of the deceased by P.W. 5. 15. 1P. Ws.2 and 3 are none other than daughter and widow of the deceased. The enemity plea of the deceased with the accused and the interestedness of P. Ws.2 and 3 with the deceased in such a case do not stand on the way to accept their veracity unless and until defence is capable of showing that they are unreliable persons or their evidence suffers from such lacuna that they should not be relied on. Learned, Additional Sessions Judge on scrutiny of the evidence has relied on their evidence. We find no reason to take a different view. 16. Appellants argue that in the F.I.R., P.W. 1 has narrated that he learnt about the incident from P.W. 3 and P.W. 3 stated before him that she got the information about the occurrence from the village girls, but in her evidence in Court P.W. 3 stated that on hearing hullah she came out from the house and proceeded to the spot and therefore, it amounts to major contradiction so as to take away credibility, of evidence of P. Ws.2 and 3. We do not find any contradiction even if the fact has been narrated in the aforesaid manner. Hearing hullah does not mean hearing shout of the deceased or the accused. That shout might have been made by the village girls and hearing that hullah they came out and proceeded to the spot. We do not find any contradiction even if the fact has been narrated in the aforesaid manner. Hearing hullah does not mean hearing shout of the deceased or the accused. That shout might have been made by the village girls and hearing that hullah they came out and proceeded to the spot. It appears from the case, diary that while making the spot visit the Investigating Officer noticed that the house of the deceased is at a distance of 100 yards from the spot of occurrence and those are in visible distance. That part of the evidence having not come on record as evidence, we do not put any stress and importance on that but the fact remains that the aforesaid criticism of the evidence of P. Ws.2 and 3 is unwarranted. Learned Counsel for the Appellants and learned Standing Counsel several times read the relevant evidence on record and we do not find any material contradiction in their evidence so as to find doubt in their credibility. Under such circumstance, the aforesaid argument of the Appellants is without merit. 17. In the result, we find that the findings recorded by the trial Court in convicting the Appellants is based on sound appreciation of evidence and since the minimum punishment for the offence u/s 302 of the Indian Penal Code has been given to them, therefore, the impugned judgment does not call for any interference. The Criminal Appeal is accordingly dismissed. Final Result : Dismissed