JUDGMENT : Pradip Mohanty, J. - The appellant, who has been convicted by the Additional Sessions Judge, Rairangpur u/s 302 I.P.C. in S.T. Case No. 36/144 of 2000 and sentenced to undergo imprisonment for life, has preferred this appeal from jail. The case of the prosecution, as narrated in the F.I.R. (Ext.1), is that on 16.03.2000 at about 5.30 PM, when the informant (P.W.1) was in his house, Sumitra Tiriya (P.W.3), the wife of the deceased, came and told him that the appellant committed murder of her husband by pounding his head with a stone. When he asked the reason for such assault, she told that on the previous day, i.e., on 15.03.2000, her husband and nephew Niranjan Tiriya had plucked some tamarind from their common tamarind tree and also cut some branches, which were creating obstacles in cultivation of their land. For this, the appellant being enraged had threatened to kill the deceased. On the date of occurrence, one Sunaram Tiriya told her that the appellant killed the deceased by giving stone blows. Hearing this, she went to the spot and with the help of others brought the deceased to house. She gave water to the deceased and on being asked the deceased told her that the appellant dealt stone blows on his head. Thereafter, the deceased succumbed to the injury. The informant (P.W.1) went to Joshipur police station and orally reported the incident. Officer in-charge of the said P.S. reduced the said oral report to writing, registered the case, took up investigation, seized the blood stained earth, sample earth and small stone (M.O.VII), held inquest over the dead body of the deceased and sent the same for post mortem examination and after completion of the investigation, filed charge sheet against the appellant u/s 302 I.P.C. 2. The plea of the appellant was one of complete denial of the allegations. 3. In order to prove its case, prosecution examined as many as fifteen witnesses including the doctor and the I.O. and exhibited fifteen documents. The defence examined none. 4. Learned Additional Sessions Judge, who tried the case, convicted the present appellant u/s 302, IPC basing upon the oral dying declaration of the deceased. 5. Dr. Rath, learned counsel for the appellant submits that non-examination of the material witness Sunaram is fatal to the prosecution. The defence examined none. 4. Learned Additional Sessions Judge, who tried the case, convicted the present appellant u/s 302, IPC basing upon the oral dying declaration of the deceased. 5. Dr. Rath, learned counsel for the appellant submits that non-examination of the material witness Sunaram is fatal to the prosecution. The so-called dying declaration without corroboration cannot form the basis for conviction of the appellant and the same is not believable, since at the time of making the dying declaration the deceased was not in a fit condition. The contents of the F.I.R. have not been proved by the informant. 6. Mr. Rath, learned Additional Standing Counsel vehemently contends that the evidence P.Ws.3 and 4, before whom the deceased had made dying declaration, cannot be disbelieved because even though P.W.4 is the brother of the deceased he is also nephew of the appellant and likewise even if P.W.3 is the widow of the deceased she is also aunt of the appellant. The doctor (P.W.13) also opined that the injuries were ante mortem in nature and that the death of the deceased was due to heavy injury causing laceration of the brain coupled with lungs injury due to fracture of left side ribs. It is the settled principle of law that basing upon the dying declaration, a conviction can be made. Therefore, the learned Additional Sessions Judge has rightly convicted the appellant and there is no scope for this Court to interfere with the impugned judgment. 7. Perused the LCR. P.W.1 is the ward member and informant of the case. He reported the matter orally at the police station which was reduced to writing. This witness has not supported the case of the prosecution and the prosecution has declared him hostile. P.W.2 is a co-villager who accompanied P.W.1 to the police station. In his examination-in-chief, he stated that P.W.3 told him that the appellant and the deceased quarrelled each other on the road and the appellant killed the deceased. He put his signature on the F.I.R. (Ext.1). In cross-examination, he stated that when he arrived at the house of the deceased, he found the deceased dead. P.W.3 is the widow of the deceased and aunt of the appellant. In her examination-in-chief, she stated that on the day of occurrence, she had gone to weekly market to sell tamarind. He put his signature on the F.I.R. (Ext.1). In cross-examination, he stated that when he arrived at the house of the deceased, he found the deceased dead. P.W.3 is the widow of the deceased and aunt of the appellant. In her examination-in-chief, she stated that on the day of occurrence, she had gone to weekly market to sell tamarind. In the market, Sunaram told her that the appellant assaulted her husband near Tundipani by means of a stone. She along with Niranjan and Bhaju went to the spot and her husband, who was alive then, asked her for water. She gave water and on being asked her husband told that the appellant dealt stone blows on his head for which he sustained injuries. In cross-examination, she admitted that she was not pulling on well with the appellant. At the time of her arrival, her husband was not talking properly. Her husband told that the appellant assaulted him for which he would die. She has further admitted that Sunaram had informed her about the incident in the daily market but he had not come with her to the spot. P.W.4 is brother of the deceased and uncle of the appellant. He stated that in the market Sunaram told him that on the way the appellant dealt stone blows on the head of the deceased, for which he sustained bleeding injuries. Thereafter, he along with his son-Niranjan and P.W.3 went to the spot and found the deceased alive. P.W.3 gave water to the deceased. The deceased told them that the appellant gave stone blows on him. In cross-examination, he stated that on his arrival, he found the deceased was not talking freely. He has admitted that he had come to the court along with P.W.3 with intoxication state. P.W.5, who is a co-villager, deposed that P.W.3 told him that she heard from one Sunaram that the appellant killed her husband. He further deposed that he had neither gone to the spot nor heard anything from the mouth of the deceased. P.W.6 has stated that he does not know anything about the case. P.W.7 is the police constable and a witness to the seizure of red colour border Gamuchha seized under Ext.2. He further deposed that he had neither gone to the spot nor heard anything from the mouth of the deceased. P.W.6 has stated that he does not know anything about the case. P.W.7 is the police constable and a witness to the seizure of red colour border Gamuchha seized under Ext.2. P.W.8 is R.I. who prepared the trace map of the spot on being identified by the O.I.C., Badampahad P.S. P.W.9 is the police constable who is a witness to the seizure of different articles under Exts.4 and 5. P.W.10 is another police constable who was commanded to take the dead body to Karanjia S.D. Hospital for postmortem examination. P.W.11 is the police constable in whose presence seizure was made vide Ext.4. P.W.12 is the doctor who examined the appellant and found no injury on is person. P.W.13 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: (i)Laceration 3" X 2" x bone deep on the parietal bone with depressed fracture; (ii) Laceration 2" X 1" bone deep over the occipital bone; (iii) Laceration 1/2" X 1/2" x bone deep over the left temporal region; and (iv) Bruise 8" X 2" over the left chest wall. He opined that injury nos.2 and 3 were bone deep. The fractured bone pieces penetrated the lungs. All injuries were ante mortem in nature. The doctor opined that the cause of death was due to heavy injury causing laceration of the brain coupled with lungs injury due to fracture of left side ribs. He proved the post mortem report (Ext.7). P.W.14 is the O.I.C. of Joshipur P.S. who reduced the oral report of P.W.1 to writing, examined the witnesses, visited the spot, sent the dead body for post mortem examination, seized the stone (M.O.VII) and arrested the appellant. As per the direction of the S.D.P.O., Rairangpur, the case was transferred to O.I.C., Badampahad P.S. P.W.15 is the O.I.C. of Badampahad P.S. On transfer of the case, he took up the investigation, examined the witnesses and sent the seized items for chemical examination. After completion of the investigation, he filed charge sheet against the appellant. 8. Admittedly, the material witness-Sunaram, who had seen the occurrence and informed the matter to P.Ws.2 to 5, has not been examined by the prosecution. After completion of the investigation, he filed charge sheet against the appellant. 8. Admittedly, the material witness-Sunaram, who had seen the occurrence and informed the matter to P.Ws.2 to 5, has not been examined by the prosecution. Therefore, adverse interference has to be drawn against the prosecution for non-examination of the said material witness. No explanation has also been given by the prosecution as to why Sunaram was withheld. Non-examination of the said witness is fatal to the prosecution. The contents of the FIR have not been proved by the informant (P.W.1). The entire case is based upon the oral dying declaration said to have been made by the deceased before P.Ws.3 and 4. In a similar case, the apex Court in Smt. Laxmi Vs. Om Prakash and Others, has held that one of the important tests of the reliability of the dying declaration is a finding arrived at by the court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. P.W.3 is the widow of the deceased. In her evidence she specifically stated that the deceased told her that the appellant dealt him stone blows, for which he sustained injury. But in cross-examination, she admitted that at the time of her arrival, her husband was not talking properly and that her husband told her that the appellant assaulted him for which he would die. This part of her evidence is inconsistent with her evidence in chief. P.W.4 is the brother of the deceased and the uncle of the appellant. In his examination-in-chief, he stated that the deceased told them that the appellant gave stone blows on him. So, there is discrepancy between the declaration said to have been made by the deceased before P.W.4 and that made before P.W.3. In cross-examination, P.W.4 admitted that at the time of his arrival the deceased was not talking freely and that he had come to the court along with P.W.3 in an intoxication state. From this, it is clear that at the time of giving evidence P.W.4 was in an intoxicated state of mind. In cross-examination, P.W.4 admitted that at the time of his arrival the deceased was not talking freely and that he had come to the court along with P.W.3 in an intoxication state. From this, it is clear that at the time of giving evidence P.W.4 was in an intoxicated state of mind. Furthermore, in view of the evidence of the doctor, who conducted autopsy over the dead body of the deceased, that the fractured bone pieces penetrated the lungs and there was haemothorax on the left side of the chest cavity, it is clear that at the time of making the dying declaration the deceased was not in a fit condition. For all the aforesaid reasons, this Court is of the opinion that the prosecution has failed to prove the charge against the appellant beyond all reasonable doubt. In the result therefore, this court sets aside the impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No. 36/144 of 2000 and acquits the appellant of the charge. The Jail Criminal Appeal is accordingly allowed. Final Result : Allowed