Judgment : Aditya Kr. Trivedi Criminal Appeal No. 85 of 1990 filed on behalf of appellant Murad Ali @ Lalan, Criminal Appeal No. 95 of 1990 filed by appellant Md. Murtuza, Criminal Appeal No. 131 of 1990 filed by Md. Chunnu and Criminal Appeal No. 140 of 1990 filed by Babloo @ Md. Salam originating out of common judgment dated 1.3.1990 passed by Sessions Judge, Muzaffarpur in Sessions Trial No. 126 of 1985 convicting all the abovenamed appellants for an offence punishable under Section 302/34 of the Indian Penal Code and sentencing them to undergo R.I. for life, have been heard together and are being disposed of by this common judgment. 2. The prosecution case in brief based on the fardbeyan of Lalit Kumar (deceased) recorded at 10:00 P.M. on 23.1.1985 is that in the same night he along with Lalan, who is the brother of Akhtar, resident of Maharani Pokhar, Babloo son of Md. Sadik, resident of Mohalla-Kachchi Saraya and two others had taken toddy in a shop situated in the back portion of Marwari High School and thereafter the informant had gone to answer the call of the nature. The informant has alleged that in the meantime all the aforesaid four persons came near him and having encircled him had severely assaulted as a result whereof he had sustained injury in his nose upper lips and neck as also a cut injury on his lips. As per the informant he could not see the weapons by which he was assaulted due to darkness. It is the further case of the informant that he could anyhow however rescue himself and had reached at Amar Cinema Chowk crossing through Khadi Bhandar and on being advised by people to report the matter to the Police Station he after making enquiry had been able to locate reach the police station with great difficulty. The informant had also claimed that he had come to Muzaffarpur Town yesterday i.e. 22.1.1985 for the treatment of his pain in stomach by Dr. R.P. Gupta. In the concluding portion of the fardbeyan the informant had also stated that though he did not know the names of the two other person accompanying Lalan and Babloo but they were friends of Lalan and Babloo. 3. R.P. Gupta. In the concluding portion of the fardbeyan the informant had also stated that though he did not know the names of the two other person accompanying Lalan and Babloo but they were friends of Lalan and Babloo. 3. On the basis of the aforementioned fardbeyan of the informant Lalit Kumar, Muzaffarpur Town P.S. Case No.34/1985 dated 23.1.1985 was instituted at 11:30 P.M. initially for an offence under Sections 325 and 307/34 of the Indian Penal Code and the informant was also sent to the hospital for his treatment. Subsequently, when the informant had succumbed to his injuries, offence under Section 302/34 Indian Penal Code was added on the requisition of the police official by the order of the court dated 25.1.1985. The police after investigation had submitted a charge-sheet not only against appellants Murad Ali @ Lalan and Babloo @ Md. Salam but also against appellants Md. Murtuza and Md. Chunnu and their trial was conducted leading to the impugned judgment and these four separate appeals by all four of the appellants. 4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is one of total denial of the occurrence as well as of false implication of the appellant. There has been also denial on behalf of appellant/convict Murad Ali @ Lalan that actually he has got no alias name as Lalan and to support the same he has also examined one D.W. as well as has also exhibited certain documents as Exhibits-A and B. The appellants have also specifically denied with regard to having made any inclupatory extra judicial confession leading to recovery of the wearing apparel of the deceased. 5. While assailing the impugned judgment of conviction and sentence, it has been argued by Mr. Vindhya Keshari Kumar, learned Senior Counsel appearing on behalf of all the appellants that the same happens to be a product and outcome of complete non-application of judicial mind. To support such plea, the learned Senior Counsel has argued that it happens to be virtually a case of no evidence in the background of the fact that identities of none of the appellants have been ascertained much less proved in order to establish their complicity in the alleged occurrence. It has also been submitted that so far appellant Md. Murtuza and Md. It has also been submitted that so far appellant Md. Murtuza and Md. Chunnu are concerned, they are not even named in the fardbeyan and thus when there is also no evidence on record adduced on behalf of prosecution to suggest that on the alleged date and time of occurrence they were even in the company of rest of two appellant/accused along and the deceased informant their conviction cannot be sustained. Proceeding further Mr. Kumar has also submitted that there happens to be prosecution version that when the house of Md. Murtuza was raided, he had himself produced a Muffler but presence of such Muffler is nowhere disclosed by the informant and as such production thereof cannot implicate the appellant Md. Murtuza. In this regard he has subscribed to the basic principle of criminal jurisprudence putting the burden on the shoulder of prosecution to prove its case instead shifting such burden to the accused and thus it was upon the prosecution to bring cogent and reliable evidence against these two appellants to suggest that they had also participated in the commission of offence as alleged by the prosecution. 6. With regard to appellant Murad Ali @ Lalan, it has been submitted that the fardbeyan did not speak with regard to specific identity of this appellant inasmuch he happens to be only Murad Ali having no alias name and is also not brother of Akhtar of Maharani Pokhar and in this regard he had place reliance on evidence of D.W. 1 Rizwan Mian, a teacher of Madarsa where appellant Murad Ali had studied which stood also established from exhibited school register as well as certificate as Exhibits-A & B. It has further been submitted that in the fardbeyan as well as in the statement of the deceased recorded under Section 161 of the Cr.P.C. the involvement one Lalan, brother of Akhtar has been introduced but the prosecution has failed to bring on record any evidence of an independent witness much less of the Mahalia people of the appellant Murad Ali to establish that he had got an alias name Lalan who was brother of Akhtar and in absence thereof even the prosecution of Murad Ali identifying him as Lalan is not at all permissible. 7. With regard to Babloo @ Md. 7. With regard to Babloo @ Md. Salam again the finding of his guilt in the impugned judgment has been challenged in same way suggesting that in the fardbeyan as well as in the statement recorded under Section 161 of the Cr.P.C., there happens to be name Babloo son of Sadique Mian but unless and until this appellant Md. Salam could have been put on T.I. Parade and properly identified as an accused who alongwith others had brutally assaulted Lalit Kumar, deceased, the finding on this score recorded by the learned trial court can also not be sustained. 8. In likewise manner, it has also been submitted by learned Senior Counsel that there is lack of any material on the record to suggest that deceased informant was in fit mental condition to make statement either by way of fardbeyan or his subsequent statement under Section 161 Cr.P.C. while he was admitted in Muzaffarpur Hospital. It has further been submitted that the bid of prosecution to connect complicity of the appellants introduced through the story of their extra judicial inculpatory confessional statement is wholly illegal inasmuch as it has got no relevance in the eye of law specially when the same only leading to alleged recovery of the articles in form of apparel of deceased Lalit Kumar is also of no use because of the fact that during course of investigation, the aforesaid apparels were not put on T.I. Parade much less identified by the members of the family of deceased Lalit Kumar and in absence thereof it cannot be said that the alleged recovered apparel was that of the deceased Lalit Kumar. 9. It has further been further submitted by Mr. Kumar that all the witnesses who have been examined in this case are the police officials who were bent upon to support the prosecution case because of the fact that failure on their part to support the occurrence committed under mysterious circumstances could have lent to their being labeled as incompetent in performing and discharging their official duty. 10. Kumar that all the witnesses who have been examined in this case are the police officials who were bent upon to support the prosecution case because of the fact that failure on their part to support the occurrence committed under mysterious circumstances could have lent to their being labeled as incompetent in performing and discharging their official duty. 10. The prosecution case has also been criticized on the ground that Town Police Station was few furlong away from the court but from column 3 of the formal FIR, it was evident that though F.I.R. dated 23.1.1985 was transmitted on 24.1.1985 by special messenger but the same still could be seen by the Magistrate only on 25.1.1985 thus causing inordinate delay. In this regard it has also been submitted that without there being any explanation for the same, such delay in transmitting the FIR to the court, in contravention of Section 157 of the Cr.P.C., in the facts of the present case, happens to be of vital importance because of the fact that till the time of reaching of FIR in the court all the appellants except Babloo @ Md. Salam had already been apprehended and arrested. 11. In the background of aforesaid facts it has been submitted that if there happens to be proper scrutiny of the evidence of PWs, who are only police personnel, the same could lend support to the theory that this case had not been properly investigated by the police which could not find any independent witness to establish proper identity of the appellants and therefore the present case suffers from inherent deficiency, infirmity and on account thereof, the findings recorded by the learned trial court in the impugned judgment is fit to be set aside. 12. In reply to the aforementioned submissions Mrs. Shashi Bala Verma learned Additional Public Prosecutor has pointed out that the entire evidence of the prosecution cannot be brushed aside only because the prosecution witnesses are police officials. 12. In reply to the aforementioned submissions Mrs. Shashi Bala Verma learned Additional Public Prosecutor has pointed out that the entire evidence of the prosecution cannot be brushed aside only because the prosecution witnesses are police officials. In this regard she has also submitted that the offence having been committed at a wholly lonely place, there could not have been any eye witness to the occurrence and as such when the police having immediately swung into action had been able to arrest three out of four appellants and in course of their interrogation could also recover incriminating material based on their extra judicial inculpatory confessional statements, the prosecution had to ultimately depend only on those officials of the Police Department who had been able to unearth/discover the complicity of the appellants in the crime. In this regard learned Additional Public Prosecutor has also submitted that on account of subsequent death of the informant his fardbeyan has assumed the nature of his dying declaration specially when the same is also backed by his other statement recorded by the Investigating Officer in the hospital and thus in presence of the two dying declaration of the informant deceased, when they have also received independent corroboration from the objective finding of the police officials conducting investigation, all of them cannot be brushed aside only by levelling to be a creation of the police. In the light of aforesaid submission she is of the view that there would be no need of any sort of interference in the impugned judgment. 13. Learned APP has also explained that the involvement of the two named appellants, namely, Murad Ali @ Lalan and Babloo @ Md. Salam being over their in the fardbeyan itself, when the police in course of investigation could also discover on the basis of inculpatory extra judicial confession of appellant Md. Murtuza and Md. Chunnu as with regard to their involvement in the occurrence which also got corroborated from recovery of incriminating material, being wearing apparel of the informant deceased, it has to be necessarily held that the prosecution had successfully established this case against all the four appellants. Murtuza and Md. Chunnu as with regard to their involvement in the occurrence which also got corroborated from recovery of incriminating material, being wearing apparel of the informant deceased, it has to be necessarily held that the prosecution had successfully established this case against all the four appellants. She has also submitted that there was no infirmity in the identification of appellant Murad Ali @ Lalan inasmuch as not only in course of search and seizure of his house the police had found him to the conspicuously absent from a long period but it had also gathered material to establish that the Murad Ali @ Lalan and Babloo @ Md. Salam named by the informant in the fardbeyan was none else save and except these two appellants Murad Ali @ Lalan and Babloo @ Md. Salam. 14. Before we would analyze the aforesaid submissions of the rival parties, it has to be noted that the prosecution in order to substantiate its case had examined altogether nine PWs out of whom PW-1 is Deo Lal Singh, P.W. 2 is Purushotam Kumar Singh, P.W. 3 is Dr. Awadhesh Prasad Singh, P.W. 4 is Chandra Mohan Jha, P.W. 5 is Surendra Singh, P.W. 6 is Ramyash Singh, P.W. 7 is Hira Lal Pandey, P.W. 8 is Bhanu Pratap Singh, P.W. 9 is Dr. Lakchman Jha. Side by side, it had also exhibited Exhibit-1 Fardbeyan, Exhibit-2 Formal FIR, Exhibit-3, P.M. Report, Exhibit-4 Series Seizure list, Exhibit-5 Series Signature of seizure list witnesses on respective seizure list, Exhibit-6 statement of deceased recorded under Section 161 of the Cr.P.C., Exhibit-6 Series (wrongly numbered) inculpatory statement of respective accused, Exhibit-7 inquest report, Exhibit- 8 injury report, Exhibit-9 information slip. In addition to them the prosecution had also exhibited material Exhibit-I Muffler, Exhibits-II Full-pant, Exhibit-III Shoes, Exhibit-IV Teeth (5) and Exhibit-V Ashes of half burnt Sweater of the deceased. 15. On the other hand the defence had also examined one witness namely, Rizwan Haider as DW-1 and had exhibited two documents as Exhibits-A and B which were in form of certificate and Admission Register respectively. 16. As noted above PW-1, Deo Lal Singh is the Sub-Inspector of Police who had recorded the fardbeyan of the informant deceased Lalit Kumar on 23.1.1985 in capacity of Officer-in-charge of Mithanpura Police Station at 10:00 PM on 23.1.1985. 16. As noted above PW-1, Deo Lal Singh is the Sub-Inspector of Police who had recorded the fardbeyan of the informant deceased Lalit Kumar on 23.1.1985 in capacity of Officer-in-charge of Mithanpura Police Station at 10:00 PM on 23.1.1985. He has not only proved the fardbeyan but has also stated that the said fardbeyan was recorded in presence of P.K. Sinha, Sub-Inspector of Police and C.M. Jha, Assistant Sub-Inspector of Police. In his examination-in-chief he had also explained that since the fardbeyan was recorded in the late night there was no person of the public available at the time of its being recorded but then the informant was in his full senses and fit mental condition to get his fardbeyan recorded. PW-1 had also stated that he had prepared the details of injury found by him on the person of the informant and had sent him to the hospital for his treatment. According to him at the relevant point of time no formal First Information Report used to be instituted in Mithanpura Police Station which was under the jurisdiction of Town Police Station and as such he had sent the fardbeyan to the Town Police Station for registering police case. Explaining this aspect he had also sought to clarify the place of occurrence being Marwari High School was comparatively nearer to Mithanpura Police Station as against the Town Police Station which was quite at a distance from Town Police Station. As per PW-1 while he had sent the fardbeyan to the Town Police Station, he had also sent the injured informant on a rickshaw with a constable to the Hospital. 17. PW-1 in his cross-examination had stated that the copy of the requisition of injury was also sent by him alongwith fardbeyan to Town Police Station. P.W.-1 had also denied to have received any orders of the Investigating Officer on telephone or to have talked on telephone as with regard to condition of the informant. Confronted with the question of the defence as with regard to prior acquaintance of PW-1 with the informant he had not only denied it but had also clarified that neither he had taken any steps for medical treatment of the informant prior to recording of the fardbeyan of the informant nor he had written fardbeyan on his own and in fact the fardbeyan of the informant was recorded as per statement given by him. He in his cross-examination had further stated that he did not put any question to the informant and had only reduced the farbeyan as per the version of the informant. PW-1 had also explained that there were injuries on the mouth and body of the informant but he did not remember as to whether he was giving his statement in halting manner. PW-1 had also clearly denied the suggestion that the informant had did not given his statement and had stated that the informant was in senses at the time of recording of his fardbeyan PW-1 had disclosed that he could not remember the name of the constable with whom he had sent the informant to the hospital. According to PW-1 Marwari High School was at a distance of 1 KM from Mithanpura Police Station. Explaining the topography of Mithanpura Police Station he had also stated that there was no house by the side of the Police Station and the water tank in front of Police Station across the road was not having attendance of workers round the clock who as a matter of fact used to work over there in the fixed hours. He had also denied the suggestion that in the office of Divisional Engineer, Telephone, situated at 50 yards from the police station, there used to be any person living over there in the night. According, to PW1 the houses were situated beyond 50 yards of the Police Station and a house of a doctor was also in the same vicinity. Similarly he had also denied the suggestion that the shops situated near the Police Station were functional and had remained opened till late in the night. 18. Thus, from the reading of the evidence of PW-1 this much is clear that he had recorded the fardbeyan of the injured informant and had sent for its being formal registration of F.I.R. to the Town Police Station as also had sent the informant to the hospital for his treatment. The fact that such a fardbeyan was recorded by PW-1 at 10:00 PM in the night in Mithanpura Police Station gets also confirmed from the formal recording of the FIR on 23.1.1985 itself at 11:30 AM at Town Police Station and that the injured informant was sent to the Police Station is also confirmed from the injury report, Ext.-8 which was proven by Dr. Laxman Jha, PW-9 and from his evidence in court it would be clear that he had examined the informant in injured condition at 11:00 PM on 23.1.1985 wherein he had found the following injuries :- I. One laceration on the upper lip measuring 1½" x ½" x whole thickness of the upper lip. II. Laceration on the lower lip ½" x ½" x whole thickness of lower lip. III. All the upper front teeth were found broken and fallen and the gum was lacerated and swollen. IV. The lower jaw two incisors were lying loose. V. Surgical emphysema of the chest due to injury of the lung. It was an injury in itself. All the injuries were grievous in nature caused by hard and blunt substance and time elapsed has been estimated within six hours though not reported in injury report and has exhibited the injury report as Exhibit-8 the patient was admitted as indoor patient who died in the same fortnight at 12:45 O'clock on account of which an information slip was sent which he exhibited and marked Exhibit-9. 19. As a matter of fact from the perusal of the evidence of Dr. Laxman Jha, PW-9 it would also be clear that while he had examined the injury of the injured informant at 11:00 PM, he had succumbed to his injury Within two hours (12:45 AM) whereafter he had sent his information slip (Exhibit-9) to the Police Station. In the cross-examination he had also stated that the injured informant with the aforementioned injuries could have given his statement though with some difficulty. He had also confirmed that the injured informant was admitted in the hospital as an indoor patient and his bed head ticket (BHT) was prepared and in such bed head ticket the condition of the patient is also mentioned. 20. In view of the evidence of PW-1 read with PW-9 not only the fardbeyan of the injured informant recorded at 10:00 PM on 23.1.1985 is corroborated but even the fact that such fardbeyan had assumed the form of dying declaration on account of his death at 12:45 AM on 24.1.1985 is also conclusively proved. 20. In view of the evidence of PW-1 read with PW-9 not only the fardbeyan of the injured informant recorded at 10:00 PM on 23.1.1985 is corroborated but even the fact that such fardbeyan had assumed the form of dying declaration on account of his death at 12:45 AM on 24.1.1985 is also conclusively proved. When the defence could not shake• the doctor in his cross-examination as with regard to capacity in giving such statement nor even his mental and physical condition and/or his being in senses was in anyway questioned by the defence the involvement of at least two of the appellants namely Lalan and Babloo in the occurrence would gain strength because of their being named in fardbeyan specially when the next witness, PW-8 Bhanu Pratap Singh has also independently corroborated not only the recording of the formal First Information Re~ port on receipt of the fardbeyan recorded by PW-1 at Mithanpura. Police Station but also taking up the investigation immediately. 21. PW-8 Bhanu Pratap Singh in fact is the next witness of the prosecution who after PW-1, Officer and PW-9 Doctor had sought to collect the threads of the prosecution inasmuch as in his evidence he had stated that on 23.1.1985 while he was posted in• Town Police Station, Muzaffarpur, the fardbeyan of informant was received from Mithanpura Police Station and at 11:30 PM the formal First Information Report was recorded in the Town Police Station whereafter the case was entrusted to him for its investigation. PW-8 has also stated that in that very night of 23.1.1985 at about 12:15 AM he had gone to Muzaffarpur Hospital and had recorded the further statement of the informant, being Ext.-6 and the informant had succumbed to his injury in the same night. In his examination-in-chief PW-8 had also stated that after recording of the further statement of the informant he had proceeded to investigate the case and having reached the house of appellant Lalan, had arrested him and in course of his interrogation Lalan had given his inculpatory confessional statement as also revealed the brick by which injury was caused on the informant deceased Lalit Kumar as also shoes of the informant has been thrown and concealed in the campus of Marwari High School. PW-8 Bhanu Pratap Singh had also stated that on the basis of the statement of Lalan he had also gone to the house of appellant Murtuza and after his arrest when his statement was taken he too had made his inculpatory confessional statement and had handed over a Muffler which was use for throttling the neck of the informant. According to PW-8 appellant Murtuza had also stated that the brick by which informant assaulted as also trousers and the shoes were show in the bush in the campus of Marwari High School. PW-8 is also said to have proceeded to the house of appellant Md. Chunnu in the company of appellant Lalan and Murtuza and having arrested him when his statement was taken he too had made inculpatory confessional statement stating about the throwing away trousers and shoes of the informant in the bush as also burning of the Sweater of the informant at a place which could shown by him. According to PW-8 though the house of appellant Babloo was also raided but he had succeeded in his escaping and thereafter he had gone to the resident of the Town Deputy Superintendent of Police from where they had come back to Marwari High School and on the basis of the place shown by appellant Murtuza recovery of five broken teeth as also blood soaked soil was recovered for which a seizure list was prepared. 22. PW-8 the Investigating Officer has also stated that on the place shown by appellant Md. Chunnu bloodstained brick as also a pair of white shoes and a old trousers was recovered for which a separate seizure list was prepared. According to PW-8 shown by appellant Lalan near the field of Marwari High School ashes of the burnt Sweater of the informant was recovered for which again a separate seizure list was prepared and since all the seizure was made early in the morning no independent witness could be found by which police party. PW-8 has also given a vivid description of the place of occurrence which according to him was a lonely place in the eastern side of the field of Marwari High School where five broken teeth of the appellant alongwith fresh copious blood was found. PW-8 has also given a vivid description of the place of occurrence which according to him was a lonely place in the eastern side of the field of Marwari High School where five broken teeth of the appellant alongwith fresh copious blood was found. The said field of the school being encircled by boundary wall at considerable amount of bush and the place of occurrence was at a distance of 5 yards from the eastern wall having its height of 9 feet where around one sq. feet of land was found to be soaked in blood. While describing the place of occurrence of PW-8 had also stated that on the adjoining boundary wall to the place of occurrence the bloodstained bricks as also a white cotton and trousers and sky colour trouser as well as the ashes of the burnt Sweater of the deceased was recovered from the north east corner at a distance of 60 yards. PW-8 had stated that the recovered articles were not visible but could be discovered only on being shown by the accused persons. PW-8 having proven the recovered articles such as Muffler, trousers, shoes, five broken teeth and ashes of the Sweater of the informant deceased and Exts.-I, II, III, IV, V had proven the three inculpatory confessional statement of appellant Lalan, appellant Md. Murtuza sand Md. Chunnu as Exts.-6/1, 6/2 and 6/3 which according to PW-8 were sent to the Police Station along with the three arrested accused. 23. PW-8 in his evidence also stated that having arrested the three accused persons as also made recovery of the incriminating material as indicated above he had also gone to hospital in the morning of 21.3.1985 and had conducted the inquest over the dead body of informant and thereafter had also recorded the statement of other police official as also had received the post mortem report. PW-8 had also stated that appellant Babloo @ Md. Salam had remained absconder and when he had surrounded in the court, his statement was also recorded by him (PW-8) who had also submitted the chargesheet after concluding the investigation. PW-8 had also stated that appellant Babloo @ Md. Salam had remained absconder and when he had surrounded in the court, his statement was also recorded by him (PW-8) who had also submitted the chargesheet after concluding the investigation. In his cross-examination he had reiterated his statement that after being entrusted with the investigation of the case the first that he had done was that he had gone to the hospital for recording the further statement of the informant and he did not go to the place of occurrence before going to the hospital. He had also reiterated the manner of search and seizure in the house of the three accused persons which had commenced from 1:00 AM in the night to 2:30 AM whereafter the place of occurrence was inspected early in the morning between 5 to 5:30 AM. His evidence on the description of place of occurrence has also remained unshakened. As with regard to the identity of appellant Murad Ali @ Lalan he had denied the suggestion that in Maharaji Pokhar Mohalla there was no other person with the name of Lalan being the brother of Akhtar. PW-8 also denied to have recorded statement of any shopkeeper of toddy. 24. Thus evidence of PW-8 again lends support to the prosecution case as with regard to the second dying declaration of the informant. It is to be noted here that the further statement of the informant recorded at 12:15 AM in the hospital by PW-8 on account of the subsequent death of the informant has taken shape of the dying declaration and yet not a single question in cross-examination was to him as with regard to mental condition and the informant not being conscious and thus incapable to give his statement. It is the cross-examination of PW-8 which gives seal of approver to even the second dying declaration which remains almost same and identical as that of the fardbeyan of the informant deceased which was taken shape of the first dying declaration of the deceased. The neck (sic-net ?) impact of these two dying declaration coupled with the recovery of the articles from the place of occurrence at least establishes the complicity of the two appellants Murad Ali @ Lalan and Babloo @ Md. Salam who were specifically named in the dying declaration. 25. The neck (sic-net ?) impact of these two dying declaration coupled with the recovery of the articles from the place of occurrence at least establishes the complicity of the two appellants Murad Ali @ Lalan and Babloo @ Md. Salam who were specifically named in the dying declaration. 25. PW-2 is P.K. Singh a police official of Mithanpura P.S. who stood as one of the attesting witness over fardbeyan (Exhibit-1). He had deposed that on 23.1.1985 he was posted at Mithanpura P.S. on the same day at about 10:00 P.M. Lalit Kumar came at the Police Station in injured condition. He had given his fardbeyan to Officer-in-charge in his presence as well as in presence of C.M. Jha, ASI. The Officer-in-charge, Deo Lal Singh scribed the same, read over and then the informant, finding it true, put his signature. Informant was sent to hospital. During cross-examination he had stated that there happens to be Naka at Purani Bazar near Marwari School where a Jamadar is posted and when the informant came to Mithanpura P.S., three or four police officials at that point of time. While he had stated that he had got no concern with the recording of fardbeyan of informant but he had explained at that very time blood was found over face of informant while he. was groaning with pain on account of he had given his statement in a halting manner and it took about ten minutes in giving his for days PW-2 had also stated that at the time of recording of fardbeyan none of the persons of locality was called for and Informant was in precarious condition but somehow he had given his statement which he was badly injured. According to PW-2 the Informant had come alone on rickshaw to police station. Thus from evidence of PW-2, recording of the FIR of the informant by PW-1, which subsequently became his first dying declaration is corroborated. 26. PW-4 is C.M. Jha. He had deposed that on 23.1.1985 he was posted at Mithanpura P.S. as ASI. On that day at about 10:00 P.M. while he was at P.S., one injured, who had disclosed his identity as Lalit Kumar had come and was groaning with pain and his face was badly damaged. He had also stated that PW-1, Officer-in-charge of Mithanpura P.S. had recorded fardbeyan of Lalit Kumar in his presence whereupon he put his signature. On that day at about 10:00 P.M. while he was at P.S., one injured, who had disclosed his identity as Lalit Kumar had come and was groaning with pain and his face was badly damaged. He had also stated that PW-1, Officer-in-charge of Mithanpura P.S. had recorded fardbeyan of Lalit Kumar in his presence whereupon he put his signature. The informant had disclosed names of his assailant. Whereafter he was sent to Hospital on a rickshaw. During cross-examination in para-2 he had said that he could not identify the accused persons who were in dock and that he had not seen their houses. In para-3 he had said that injured was in precarious condition and was speaking in a low voice. PW-4 however had accepted that he was not aware as to how the informant had come to the Police Station. PW-4 therefore also lends support to the prosecution case as with regard to recording of FIR by PW-1 on the statement of the informant. 27. Thus on scrutiny of evidence of PW-1, PW-2 and PW-4 it becomes clear that they have fully supported the first part of event having taken place in their presence at Mithanpura P.S. where the informant (deceased) had firstly approached and gave his fardbeyan. After going through the cross-examination of these three P.Ws. it is also quite clear that they have not been shaken on the point of recording of fardbeyan of injured (deceased) Lalit Kumar and further nothing could be taken from them so as to smash their testimony over mental condition of informant Lalit Kumar. In that view of the matter there happens to be no hitch or impediment in accepting the genuineness of fardbeyan, Exhibit-1. In likewise manner they all had remained firm over injured informant Lalit Kumar of being sent to Hospital by PW-1. 28. Now begins the second set of evidence which has been collected during course of investigation by the Investigating Authority after registration of the case. PW-5 is Surendra Singh, ASI of Police who was on the relevant day was posted at Town P.S., Muzaffarpur. 28. Now begins the second set of evidence which has been collected during course of investigation by the Investigating Authority after registration of the case. PW-5 is Surendra Singh, ASI of Police who was on the relevant day was posted at Town P.S., Muzaffarpur. He had deposed that on 23.11.1985 he was also one of the member of raiding party alongwith Bhanu Pratap Singh (PW-8) who with other police official had conducted raid at the house of Lalan @ Murad Ali Bhanu Pratap Singh (PW-8) was the Investigating Officer and on query made by Bhanu Pratap Singh, Lalan had confessed his guilt in their presence and had further disclosed that the trouser, Sweater, brick pieces and broken teeth could be found behind Marwari High School at a place where they had concealed them. Thereafter, Lalan was arrested and on the same night i.e. 23/24.1.1985 they had also conducted raid at the house of appellant Murtuza while appellant Lalan was with them and Murtuza was also interrogated in course of which he had disclosed that trouser, Sweater, brick pieces and broken teeth of the deceased were concealed behind Marwari School. PW-5 had also stated that appellant Murtuza had also brought and produced one Muffler from his house which was seized by PW-8 the Investigating Officer and a seizure list was prepared in his presence as well as in presence of Hira Lal Pandey in carbon process on which they had put their signature and a copy thereof was also handed over to Murtuza over which he had also signed. PW-5 had also stated that thereafter they proceeded alongwith both Lallan and Murtuza and had conducted raid at the house of appellant Md. Chunnu who was also apprehended and was interrogated and he too had confessed that shoes, trouser and sweater of informant had been concealed in a bush behind Marwari School. Then thereafter all the police officials alongwith three accused persons had gone to the place of Ramjash Singh, Dy. S.P. and thereafter on 24.1.1985 at about 5:00 A.M. they had gone to the back portion of Marwari School where they had traced out four or five bloodstained teeth on its being shown by Murtuza. Then thereafter all the police officials alongwith three accused persons had gone to the place of Ramjash Singh, Dy. S.P. and thereafter on 24.1.1985 at about 5:00 A.M. they had gone to the back portion of Marwari School where they had traced out four or five bloodstained teeth on its being shown by Murtuza. According to PW-5 pieces of brick, Full-pant and shoes were recovered from the place as shown by accused Chunnu whereas ashes of burnt Sweater of the informant was recovered from the place shown by appellant Lalan which was also seized and three separate seizure lists were prepared in carbon process over which PW-5 alongwith Hira Lal Pandey (PW-7) had put their signature and a copy thereof was served upon the respective accused who had put their signature on seizure list. Then thereafter they returned back to P.S. alongwith accused and seized articles. PW-5 had also identified the accused as well as exhibited the relevant documents. 29. During cross-examination at para-6 PW-5 had disclosed that first of all they had gone to the house of appellant Lalan where they had stayed for half an hour and the statement of Lalan was recorded at his house by the Investigating Officer. PW-5 had explained that the house of Murtuza was 15 to 20 yards away from the house of appellant Lalan. He had also reiterated that statement of Murtuza was recorded at his house whereafter they had gone to the house of appellant Chunnu which was 1 K.M. away therefrom in Mohalla-Chandwara. PW-5 had also stated that they have gone to the place of respective accused on a jeep and they were called from their houses. He had claimed that at the time of seizure no person of locality came. According to PW-5, the I.O., PW-8 had presented extra judicial confessional statement of accused before Dy. S.P. Whereafter they had gone to Marwari School at 5:10 A.M. and they were carrying torch. PW-5 had also in his evidence to a question of defence answered that they had not searched the place on their own rather had asked the respective accused to disclose the place and had searched at the places as pointed out by the accused whereafter the articles were found and its seizure list was prepared. PW-5 had also in his evidence to a question of defence answered that they had not searched the place on their own rather had asked the respective accused to disclose the place and had searched at the places as pointed out by the accused whereafter the articles were found and its seizure list was prepared. PW-5 had also explained that no further statement of respective accused was recorded at the spot of seizure and he had signed over seizure list. At para-8 PW-5 had disclosed that he was not knowing appellant Murad Ali since before and he had also not seen any document with regard to his alias name. According to PW-5 it was PW-8 the Investigating Officer who had recorded the extra judicial confessional statement of Murad Ali wherein he had disclosed the place of occurrence as well as the place where ash could be found. PW-5 had stated in his evidence also regarding disclosure made by Murad Ali relating to Full-pant, Sweater, Brick particle, teeth of the informant which was mentioned in the connected seizure list. PW-5 had further denied suggestion that Murad Ali had got no alias name and in para-9 he had disclosed that no person of the locality came at the time of search and seizure. Thus from the evidence of PW-5 the second part of prosecution case as with regard to investigation has taken up soon after recording of FIR by PW-1, leading to apprehending and arresting the accused and search and seizure of the incriminating articles of the places pointed out by the three accused as per their confessional inculpatory statement is proved. 30. P.W. 6 happens to be Ramjash Singh, the Dy. S.P. who had deposed that on 24.1.1995 he was posted as Dy. S.P., Town P.S., Muzaffarpur. On that day at about 4:30 A.M. a raiding party headed by PW-8, the IO came at his residence alongwith accused Murtuza, Chunnu and Lalan and he alongwith them had gone to the campus of Marwari High School. According to PW-6 at that point of time no public witness was available. PW-6 had also stated that they had inquired from accused persons separately and thereafter on being pointing out by Murtuza, five teeth soaked with fresh blood were recovered and seized. All such teeth were of human being. According to PW-6 at that point of time no public witness was available. PW-6 had also stated that they had inquired from accused persons separately and thereafter on being pointing out by Murtuza, five teeth soaked with fresh blood were recovered and seized. All such teeth were of human being. According to PW-6 copious blood was found at that place which was also seized and for that seizure list was prepared over which he alongwith Surendra (PW-5) had put his signature. He had also stated that from the place pointed out by appellant Chunnu one blood-stained brick piece and one pair shoe and a Full-pant was recovered for which seizure list was prepared in carbon process over which a he alongwith Surendra had signed. PW-6 had further stated that as pointed out by Lalan one half burnt Sweater as well as ash was seized for which a seizure list was prepared in carbon process over which he had put his signature. PW-6 did not claim to identify the accused in dock and in this regard had disclosed that they all were arrested much earlier. He had reiterated that all the recovery was made from the same campus of the school. During cross-examination in para-5 he had disclosed that no written statement of accused was scribed before his arrival at the place of occurrence and that he had inquired from the accused at his residence and only thereafter had proceeded towards campus. The three accused persons had disclosed to him (PW-6) that they could show the articles and all such seizure was made from the places as shown by all the accused persons themselves and not on search by the raiding party. According to PW-6 all the three accused had given their statement one by one and all the three accused had independently pointed out the articles and accordingly were also seized. PW-6 had also clarified that the police party has got no information with regard to the place of concealment of incriminating articles before recording of their statement and aforesaid disclosure was made by the accused persons themselves. PW-6 had also stated that seizure list was prepared in his presence although the case diary was not written in his presence. In para-7 he had disclosed that half burnt Sweater alongwith ash was found at eastern southern corner of main building of Marwari School. PW-6 had also stated that seizure list was prepared in his presence although the case diary was not written in his presence. In para-7 he had disclosed that half burnt Sweater alongwith ash was found at eastern southern corner of main building of Marwari School. Thus from evidence of PW-6, a senior police officer also the prosecution case gets corroborated. 31. PW-7 Hiralal Mahto a police constable who had also been with PW-8 the Investigating Officer in course of his investigation in the night of 23.1.1985 alongwith PW-8 and PW-6 though was tendered by prosecution, but in his cross-examination he has stood firm and had stated that he was posted at Muzaffarpur at the relevant point of time and in fact one year prior to the occurrence in question. Nothing could be taken away from him by the defence to discredit the case of the prosecution. 32. In the light of the aforementioned evidence of PW-5, PW-6 and PW-8 is beyond below (sic) of any doubt that after recording of the First Information Report at 11:30 PM on 23.1.1985 the police officials had immediately swung into action and could successfully discover the complicity of the appellants by carrying and unrelenting investigation in the night of 23.1.1985. Thus, the first part of the prosecution case up to the stage of recording of the fardbeyan of the injured informant giving lead as with regard to involvement of the two named accused persons has also been substantially corroborated by the second part of the prosecution leading to search, seizure, arrest of three of the four appellants and recovery of incriminating material at the places indicated in their inculpatory confessional statement. 33. The prosecution case in fact has received full support also from the evidence of the doctor PW-3 who had conducted post mortem over the dead body of Lalit Kumar on 24.1.1985 at 1:10 P.M. and found the following opinion while recording presence of ante mortem injuries on the deceased :- I. One lacerated wound ½" x ½" x bone deep, present over (L) side of mandible. On dissection fracture of mandible was present at two places with diffusion of blood in mouth cavity. II. Multiple abrasions were present over upper of the chest and neck. III. On dissection of neck diffusion of blood in underlying subcutaneous tissues and laceration of neck muscles present. Fracture of trachea present. IV. On dissection fracture of mandible was present at two places with diffusion of blood in mouth cavity. II. Multiple abrasions were present over upper of the chest and neck. III. On dissection of neck diffusion of blood in underlying subcutaneous tissues and laceration of neck muscles present. Fracture of trachea present. IV. On dissection of chest fracture of 2nd to 5th rib present on right side. The injuries are ante mortem in nature. Injury No. 1 is produced by hard blunt object and 2 and 3 by pressure over chest by hard and heavy object. In the opinion of doctor, injury no. 1 was caused by hard and blunt substance while injury nos. II & III by pressure over chest by hard and heavy object. Cause of death is as a result of shock and asphyxia as a result of abovementioned injuries. Time elapsed since death within 12 to 24 hours. Further explained the injury in more detail and further opined that it was possible for the deceased to pronounce words or to speak but with difficulty. 34. During cross-examination PW-3 the Doctor had deposed that generally asphyxia causes sudden death. He had also stated that a person with the above injuries could walk some distance, such as, fifty to hundred yards. In para-6 he had further disclosed that he had not found alcoholic smell coming out from the urine, nor any smell of alcohol or toddy coming from the mouth of the deceased. 35. Thus the presence of injury as per prosecution version has been also corroborated by the respective doctors i.e. P.W. 8 as well as PW-3, which is found to be consistent with each other. With regard to mental condition of deceased, PW-9 as well as PW-3 had successfully faced cross-examination made on behalf of Appellants and nothing tangible could be taken out from them to impeach or discredit their evidence. 36. Now after analyzing the evidence having on the record, it is evident that on earlier occasion fardbeyan (Exhibit-1) was given by Lalit Kumar whose statement during course of investigation was recorded by P.W. 8 under Section 161 Cr.P.C. and on account of death of the aforesaid Lalit Kumar the same has been brought on record as Exhibit-6. 36. Now after analyzing the evidence having on the record, it is evident that on earlier occasion fardbeyan (Exhibit-1) was given by Lalit Kumar whose statement during course of investigation was recorded by P.W. 8 under Section 161 Cr.P.C. and on account of death of the aforesaid Lalit Kumar the same has been brought on record as Exhibit-6. Exhibit-1 as well as Exhibit-6 disclose the fact that how the deceased Lalit Kumar was brutally assaulted at the hands of accused persons by disclosing their identity who were known to him since before alongwith his two associates. None of the prosecution witnesses have been cross-examined on this score nay any suggestion was put on behalf of any of the accused more particularly by Lalan and Bablu whose names alongwith specific identification is there that they were not known to the deceased since before as well as there was no occasion for deceased to identify them since before. With regard to Bablu more detail in evidence was furnished in a manner that deceased was under employment of his brother-in-law and further there was some sort of family feud which had cropped up amongst the spouse. There is also complete absence of plea that appellants were falsely implicated at the instance of their enemies. Not only this, there is also absence of at least by way of suggestion that at the time of recording of FIR, deceased informant was tutored, or was influenced by somebody else. 37. So far case of Md. Murtuza and Md. Chunnu is concerned, it appears that they have not been named in the written report (Ext.-1) nor in the statement recorded under Section 161 (Exhibit-6) and they have been roped in on account of being friend of Bablu and Lalan. During course of investigation, PW-8 had not disclosed on his own how he had been able to identify and pinpoint these two accused save and except on the basis of their alleged inculpatory extra judicial confessional statement. The recovery made on the basis of such alleged inculpatory extra judicial confessional statement of these two accused and its impact appear to be core issue which has to be appreciated in the background of Section 27 of the Evidence Act. The recovery made on the basis of such alleged inculpatory extra judicial confessional statement of these two accused and its impact appear to be core issue which has to be appreciated in the background of Section 27 of the Evidence Act. Although the injured informant had died on the same day while under going treatment in hospital but status of these two appellants should still have been properly ascertained and affixed during course of investigation as also during conduction of trial, but there is inherent weakness in the prosecution case on this score. 38. With regard to rest two appellant namely Lalan and Bablu no positive plea is found to have been placed on their behalf, more particularly on behalf of Bablu. On behalf of Lalan @ Murad Ali it has been submitted that he happens to be Murad Ali and further he has got no brother by name Akhtar, although his house happens to be in the same locality as disclosed in the fardbeyan as well as in the statement of the deceased (Exhibt-6). Right from fardbeyan (Exhibit-1) both of them had been identified by name alongwith specific role and part played by them and that had ultimately resulted by way of arrest of Lalan @ Murad Ali. This aspect coupled with inculpatory extra judicial confessional statement leading to recovery of the weapon to assault alongwith other incriminating as also the fact articles, Bablu was found missing from his house for a long time would bring them within the fold of prosecution case. 39. As stated above, it is manifest from the evidence adduced on behalf of prosecution during trial that none is an eye witness. So this case happens to be based upon circumstantial evidence. The Hon'ble Apex Court has repeatedly laid down the criteria for consideration of the case based on circumstantial evidence and the settled law is that the evidence should be there so to establish a complete unbroken chain of events inspiring an inexplicable conclusion with regard to guilt of the accused. Reference in this connection may be usefully made to the case of Madhu Vs. State of Kerala reported in (2012)2 SCC 399 [: 2012(1) PLJR (SC)384] wherein it was held that:- "The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Reference in this connection may be usefully made to the case of Madhu Vs. State of Kerala reported in (2012)2 SCC 399 [: 2012(1) PLJR (SC)384] wherein it was held that:- "The care and caution with which circumstantial evidence has to be evaluated stands recognized by judicial precedent. Only circumstantial evidence of a very high order can satisfy the test of proof in a criminal prosecution. In a case resting on circumstantial evidence, the prosecution must establish a complete unbroken chain of events leading to the determination that the inference being drawn from the evidence is the only inescapable conclusion. In the absence of convincing circumstantial evidence, an accused would be entitled to the benefit of doubt. (The manner of consideration of the evidence led by prosecution during trial when the case is based upon circumstantial evidence gives an additional burden upon the prosecution to prove and establish each circumstance aboveboard in such way that when it is being interlinked it should form a chain encircling the accused with the only conclusion and. none other being an author of the crime). 40. The matter has elaborately been dealt with again by Apex Court in case of Munna Kumar Upadhyay @ Munna Upadhyaya Vs. State of Andhra Pradesh reported in (2012)6 SCC 174 [: 2012(3) PLJR (SC)267] while hold that:- 24. A case of circumstantial evidence is primarily dependent upon the prosecution story being established by cogent, reliable and admissible evidence. Each circumstance must be proved like any other fact which will, upon their composite reading, completely demonstrate how and by whom the offence had been committed. This Court has clearly stated the principles and the factors that would govern the judicial determination of such cases. 25. Reference can be made to Sanatan Naskar vs. State of W.B., (2010)8 SCC 249 where the Court held as follows: (SCC p. 260, paras 27-28) "27. There cannot be any dispute to the fact that it is a case of circumstantial evidence as there was no eyewitness to the occurrence. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. It is a settled principle of law that an accused can be punished if he is found guilty even in cases of circumstantial evidence provided, the prosecution is able to prove beyond reasonable doubt complete chain of events and circumstances which definitely points towards the involvement and guilt of the suspect or accused, as the case may be. The accused will not be entitled to acquittal merely because there is no eye witness in the case. It is also equally true that an accused can be convicted on the basis of circumstantial evidence subject to satisfaction of the accepted principles in that regard." 28. A three-Judge Bench of this Court in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984)4 SCC 116 held as under: (SCC pp. 184-85, paras 152-54) "152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Govind Nargundkar vs. State of M.P., AIR 1952 SC 343 . This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail vs. State of U.P., (1969)3 SCC 198 and Ram Gopal vs. State of Maharashtra (1972)4 SCC 625 . It may be useful to extract what Mahajan, J. has laid down in Hanumant case: (AIR pp. 345-46, para 10) "10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973)2 SCC 793 where the observations were made: [SCC p. 807, para 19 : SCC (Cr.) p. 1047] "19. ... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions." (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 41. 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 41. Now coming to the circumstance, the first one happens to be presence of fardbeyan Exhibit-1 as well as Exhibit-6 the statement of deceased recorded under Section 161 of the Cr.P.C. On account of death of deceased the aforesaid documents stood the test of dying declaration and can be safely treated and accepted as dying declaration. Its recognition has been identified by the Hon’ble Apex Court in the case of (as reported in 2010 Cr.L.J. 4721) (Mukeshbhai Gopalbhai vs. State of Gujarat) wherein it has been held that :- 4. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declaration Exts.-44 and 48 could not be taken as evidence in view of the provisions of Sections 161 and 162 of the Cr.P.C. when read cumulatively. These findings are, however, erroneous. Sub-section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under:- Sec. 32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant.-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death.-When the statement is made by a person 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. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question." We see that the aforesaid dying declarations are relevant in view of the above provision. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question." We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Sections 161 and 162 of the Cr.P.C. admittedly provide for a restrictive use of the statements recorded during the course of the investigation but sub-section (2) of Section 162 deals with a situation where the maker of the statement dies' and reads as under:- "(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act." 5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declaration Exts. 44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14th September, 1993 would, in fact, be the First Information Report in this case." 42. From the two dying declarations available on the record the names of Bablu, son of Sadique Mian as well as Lalan brother of Akhtar are found which have been properly identified. Though two of their other associates have also been picturized but their identity are not at all disclosed therein. At this juncture it has been submitted on behalf of appellants that there happens to be inconsistency in the aforesaid two dying declarations as such both are fit to be rejected. We have gone through the same and from perusal of the respective documents, it is evident that on material point there is no inconsistency. Moreover, in a decision reported in AIR 1974 SC 2188 (Godhu and Another Vs. State of Rajasthan) the Apex Court had held that:- 16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct. Moreover, in a decision reported in AIR 1974 SC 2188 (Godhu and Another Vs. State of Rajasthan) the Apex Court had held that:- 16. We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct. It must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the court on the guard and induce it to apply a rule of caution. There may be cases where in the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy, the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. 43. Because of the fact that, there happens to be no infirmity or inconsistency with regard to the aforesaid two dying declaration so far manner as well as genesis of occurrence is concerned alongwith the names of assailants during course of commission of the occurrence, therefore, both of them are found to be acceptable and reliable. The other part which is evident from Exhibit-6 is not found to eclipse the genuineness of the veracity of Exhibit-1 as well as Exhibit-6. 44. The learned counsel for the appellant has however referred two decisions on this particular issue. The other part which is evident from Exhibit-6 is not found to eclipse the genuineness of the veracity of Exhibit-1 as well as Exhibit-6. 44. The learned counsel for the appellant has however referred two decisions on this particular issue. The first one is the case of State (Delhi Administration), vs. Laxman Kumar and Others reported in AIR 1986 SC 250 , wherein the dying declaration was rejected in the background of the fact that the deceased was administered pethidine injection which was to be repeated at an interval of every eight hours and the court took judicial notice to the fact that after pethidine is given to the patient he would not have normal alertness and no cross-examination was led by the prosecution to the DW on this score. The facts therefore of this case is clearly distinguishable. Moreover within the jurisdiction of NCT Delhi the police officials were not authorized to record dying declaration but the said embargo is not at all applicable to the State of Bihar. The reliance placed in the case of Smt. Kamla vs. State of Punjab reported in AIR 1993 SC 374 , is equally misconceived because there were four dying declarations inconsistent with each other on each and every material aspect and one of them had not only exonerated the accused rather shown had him to have engaged in rescuing her. Apparently the facts again would hold the key and make the present case distinguishable inasmuch as the two dying declaration have no inconsistency on the material points. 45. Now coming to another aspect, soon after recording of statement of deceased under Section 161 of the Cr.P.C., the Investigating Officer came in action in full swing and had conducted raid at the house of Lalan @ Murad Ali alongwith other police officials. They had apprehended Lalan @ Murad Ali and on interrogation he confessed his guilt also disclosing activities of co-accused and further disclosed that he could identify the place where the belongings of the deceased have been concealed alongwith the place where he was assaulted. Subsequently a raid was also conducted at the house of Md. Murtuza and Md. Chunnu who were also apprehended and who also confessed their guilt. Md. Murtuza also produced Muffler before the I.O. disclosing that by that Muffler neck of deceased was pressed. Subsequently a raid was also conducted at the house of Md. Murtuza and Md. Chunnu who were also apprehended and who also confessed their guilt. Md. Murtuza also produced Muffler before the I.O. disclosing that by that Muffler neck of deceased was pressed. They had also disclosed that they could point out the place where apparel of the deceased were concealed, near the place of occurrence. Subsequent thereof house of Bablu @ Mohammad Salam was also raided who however had escaped before arrival of police. On pointing out of aforesaid three accused while having them under police custody the police party had gone to the place of occurrence and recovered the articles including the teeth as well as also found blood-stained earth at the place of occurrence. 46. With regard to admissibility of the disclosure made by the accused during course of police custody leading to recovery in terms of Section 27 of the Evidence Act, the following criteria have been laid down by the Apex Court in the case of State of Rajasthan vs. Bhup Singh reported in (1997)10 SCC 675 :- "Para 14. For unwrapping the cover of ban against admissibility of statement of the accused to the police: (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. The Court observed that if these conditions are satisfied, that part of the information given by the accused which led to such recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence." 47. At this stage the plea raised on behalf of appellant Murad Ali @ Lalan had also to be taken into consideration because of the fact that he had pleaded that he is simply Murad Ali having no alias name and for that DW-1, Rizwan Haider, a teacher has been examined who had exhibited the School Register. Apart from the fact that from the evidence of DW-1, through which relevant admission register has been exhibited shows that authentication of the register on its physical verification and on account of presence of some sort of interpolation therein the same cannot be accepted. Apart from the fact that from the evidence of DW-1, through which relevant admission register has been exhibited shows that authentication of the register on its physical verification and on account of presence of some sort of interpolation therein the same cannot be accepted. Not only this, alias name are not at all incorporated in the school register and so presence of alias name as Lalan was not expected to be incorporated in the register. Contrary to it no person of his locality including his father or mother has been examined in this case by the defence to say that lalan is not Murad Ali and further name of his brother does not happen to be Akhtar. In absence thereof the defence plea of the Murad Ali that he has got no alias name cannot be held to have been satisfactorily discharged by him. 48. A plea has further been raised on behalf of the appellants that the evidence of all the witnesses are fit to be rejected as a whole because of the fact that all the witnesses whoever been examined in this case are police officials. This also cannot be accepted inasmuch as in Evidence Act there happens to be no distinction with regard to acceptance of evidence of police officials or their rejection only on the basis of that he happens to be a police official. A police official can depose with regard to fact in issue and his evidence can be accepted if it does not suffer from other infirmities. A similar question had earlier been considered in a case of Tahir Vs. State (Delhi) reported in AIR 1996 SC 3079 , and even recently the same issue has been dealt with in the case of Girija Prasad reported in AIR 2007 SC 3106 , wherein it has been held that :- "That it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration." Moreover in a decision reported in 2012 Cr.L.J. 1991 (Girja Prasad Raju @ Govinda vs. State by Sriramapuram P.S. & Anr.) it has been held in para-17 :- 17. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays own that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Rather than referring to various judgments of this Court on this issue, suffice it to note that even in the case of Girja Prasad ( AIR 2007 SC 3106 : 2007 AIR SCW 5589) (supra), this Court noticed the judgment of the Court in the case of Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 , a judgment pronounced more than half a century ago noticing the principle that the presumption that a person acts honestly applies as much in favour of a police officer as of other person and it is not a judicial approach to distrust and suspect him without good grounds therefor. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder. 49. This principle has been referred to in a plethora of other cases as well. Some of the cases dealing with the aforesaid principle are being referred hereunder. 49. Now coming to another aspect relating to the manner of recording of statement of accused under Section 313 of the Cr.P.C., it is settled law that all the incriminating particular whatever found to be placed before the court in evidence has to be placed before the accused so that he should have an opportunity to explain the same. For better appreciation, the principles decided by the Hon'ble -Apex Court on this score recently in a decision reported in (2010)12 SCC 310 [: 2011(1) LJR (SC)110] (Manu Sao vs: State of Bihar) may be useful where in it was held that:- 12. Let us examine the essential features of this Section 313 CrPC and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code. 13. As already noticed, the object of recording the statement of the accused under Section 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence. 14. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution. 50. From perusal of questionnaire put to the appellants in course of their examination under Section 313 of the Cr.P.C., it is evident that in sum and substance all the incriminating materials have been placed and no prejudice has been caused to the appellants on this score. 51. The next submission as with regard to delay in sending FIR to Magistrate has also no merit inasmuch as no cross-examination has been made on behalf of the appellants on this score to Investigating Officer PW-8. 51. The next submission as with regard to delay in sending FIR to Magistrate has also no merit inasmuch as no cross-examination has been made on behalf of the appellants on this score to Investigating Officer PW-8. The matter has also been dealt with in detail in a case Brhma Swaroop Vs. State of U.P. reported in 2011 Cr.L.J. 306, wherein it has been held as follows:- 11. Undoubtedly, there is delay in 5 days in sending the Special Report. This Court in Badam Singh vs. State of M.P., (2003)12 SCC 792 : ( AIR 2004 SC 26 ), while considering this issue held that where the investigating officer categorically stated that he was not in a position to give any explanation for the delay in sending the Special Report, it may be fatal to the prosecution's case. 12. However, a larger Bench of three Judges in Balram Singh and Anr. Vs. State of Punjab, (2003)11 SCC 286 : ( AIR 2003 SC 2213 ), held as under :- “10……we notice that in reality there is no delay in preparing the FIR but there was some delay in transmitting the said information to the jurisdictional Magistrate. Having been satisfied with the fact that the FIR in question was registered in the morning of 6.5.1990, we do not think that the delay thereafter in communicating it to the jurisdictional Magistrate on the facts of this case, has really given any room to doubt that the said document (FIR) was created after much deliberations. At any rate, while considering the complaint of the appellants in regard to the delay in the FIR reaching the jurisdictional Magistrate, we will have to also bear in mind the creditworthiness of the ocular evidence adduced by the prosecution and if we find that such ocular evidence is worthy of acceptance, the element of delay in registering a complaint or sending the same to the jurisdictional Magistrate by itself would not in any manner weaken the prosecution case.” 13. In State of Rajasthan vs. Teja Singh & ors., (2001)3 SCC 147 : ( AIR 2001 SC 990 ), this Court held that the receipt of special report by the Magistrate is a question of fact and the prosecution may explain the delay in sending the special report. However, the explanation so furnished by the prosecution must be convincing and acceptable in Ramesh Baburao Devaskar & Ors. However, the explanation so furnished by the prosecution must be convincing and acceptable in Ramesh Baburao Devaskar & Ors. vs. State of Maharashtra, (2007)13 SCC 501 : (2008) CriLJ 372 (SC): AIR 2007 SC (Supp.) 1606. 14. In Sarvesh Narain Shukla vs. Daroga Singh & Ors., AIR 2008 SC 320 , this Court held that delay in forwarding the Special Report to the Magistrate could not raise a suspicion that FIR had been written later and was ante-timed. Suspicion of manipulation of the documents prepared during the initial investigation would not dislodge the documentary and oral evidence on the spontaneity of the lodging of the FIR. 15. In Aqeel Ahmad (supra), this Court held that the forwarding of the report to the Magistrate in indispensable and absolute and it must be sent at the earliest, promptly and without any undue delay as the purpose is to avoid the possibility of improvement in the prosecution's case and the introduction of a distorted version by deliberations and consultation and to enable Magistrate concerned to keep a watch on progress of investigation. However, no rule of universal application can be laid down that whenever there is some delay in sending the FIR to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. If there has been some lapse on the part of the Investigating Officer that would not affect the credibility of the prosecution's witnesses. 16. In State of Kerala Vs. Anilachandran @ Madhu & Ors., AIR 2009 SC 1866 , this Court placed reliance upon its earlier judgments in Pala Singh vs. State of Punjab, AIR 1972 SC 2679 ; and Sarwan Singh vs. State of Punjab, AIR 1976 SC 2304 and held that the police should not unnecessarily delay sending the FIR to the Magistrate as the delay affords the opportunity to introduce improvement and embellishment thereby resulting in a distorted version of the occurrence. However, in case the prosecution offers a satisfactory explanation for the delay, the court has to test it. An unexplained delay by itself may not be fatal, but it is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence. A similar view has been reiterated in Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra, (2009)10 SCC 773 : [2010 AIR SCW 236: 2010(2) AIR Bom. An unexplained delay by itself may not be fatal, but it is certainly a relevant aspect which can be taken note of while considering the role of the accused persons for the offence. A similar view has been reiterated in Pandurang Chandrakant Mhatre & Ors. vs. State of Maharashtra, (2009)10 SCC 773 : [2010 AIR SCW 236: 2010(2) AIR Bom. R. 209 (SC)]. 17. In Akbar Sheikh & Ors. vs. State of W.B., (2009)7 SCC 415 : AIR 2009 SC (Supp) 1638, this Court held as under:- "44. Submission of Mr. Ghos that the first information report is ante-timed cannot be accepted. It is possible that PW 1 because of lapse of time has made certain statements which go beyond the record viz. holding of inquest before the FIR was recorded. The number of accused persons in the first information report might have also been put by the investigating officer at a later point of time. The fact that the post mortem examination had been held on 16.5.1982 itself goes a long way to establish the genesis of the occurrence. While saying, so we are not unmindful of the fact that the first information report was sent to the Magistrate after twenty-four hours. But then, in a case of this nature such a delay may not, by itself, be held to be fatal". 18. In the instant case, the defence did not put any question in this regard to the Investigating Officer Raj Guu (PW-10), thus, no explanation was required to be furnished by him on this issue. Thus, the prosecution had not been asked to explain the delay in sending the special report. More so, the submission made by Shri Tulsi that the FIR was ante-timed cannot be accepted in view of the evidence available on record which goes to show that the FIR had been lodged promptly within 20 minutes of the incident as the Police Station was only 1 K.M. away from the place of occurrence and names of all the accused had been mentioned in the F.I.R. Dr. Nar Singh Bahadur (P.W. 4) examined Virendra Singh (D. 3) on 31st May, 2000 itself at 5.40 p.m. and had noted firearm injuries on his body and opined that the injuries were fresh in nature. Dr. Nar Singh Bahadur (P.W. 4) examined Virendra Singh (D. 3) on 31st May, 2000 itself at 5.40 p.m. and had noted firearm injuries on his body and opined that the injuries were fresh in nature. Dr. Anshu Kumar Agrawal (PW-6) had examined Atar Singh and had not multiple pellet wounds with surrounding charring over anterior surface of left thigh middle part and a single pellet wound over the anterior surface at right arm lower part. Dr. K.K. Saxena (PW-5), Radiologist conducted an X-ray examination of Attar Singh (PW-1) on 31.5.2000 and found three small rounded radio opaque with metallic density and F.B. shadow on middle of left thigh and right arm. The prompt lodging of the FIR is proved from the chik report and the statement of the complainant under Section 161 Cr.P.C. which was recorded immediately after lodging the F.I.R. Any defect in the preparation of the inquest report by the Investigating Officer cannot lead to an inference that the FIR was not registered at the alleged time. The FIR contains all the essential features of the prosecution's case including names of eye witnesses, time and place of incident, names of the victim, motive, name of the accused persons, weapons in their hands and manner of assault. Thus, all these things lend a seal of assurance not only to the presence of eye witnesses at the place of incident, but also to the participation of the appellants in the crime. Courts attach great importance to the prompt lodging of F.I.R. and prompt interrogation of a witness under Section 161 Cr.P.C. as the same substantially eliminates the chances of embellishment and concoction creeping into the account contained therein." (Underline for emphasis) 52. In the light of the aforementioned discussion as with regard to the alleged delay in reaching of the First Information Report to the court we have no hesitation in holding that in fact when the defence had not even put this question to the Investigating Officer in cross-examination, no benefit thereof can be derived on this score. Moreover, the prompt lodging of the fardbeyan resulting into First Information Report within one hour of the occurrence is conclusively proved from Exhibit-1 the fardbeyan itself. Moreover, the prompt lodging of the fardbeyan resulting into First Information Report within one hour of the occurrence is conclusively proved from Exhibit-1 the fardbeyan itself. The fardbeyan recorded at 10:00 PM by PW-1 on 23.1.1985 on the basis of which not only FIR was instituted at Town Police Station at 11:30 P.M. but even the treatment of the informant was made in the S.K. Medical College Hospital, Muzaffarpur as duly supported by PW-3 the doctor giving the first treatment to the informant would go to show that there was no question of any embellishment in the version of the informant. It has to be kept in mind that the fardbeyan had recorded the only two of the appellants and had the police been over anxious to implicate all the four appellants after the search and seizure in the house of the three appellants as discussed above in the night of 23.1.1985 itself. Nothing could be prevented the police to name all the four appellants. That however was not done and the police had proceeded to investigate the case on the basis of disclosure made by the informant in his fardbeyan giving names of only two of the appellants Lalan and Bablu and in such circumstances there would be no difficulty in reaching to the conclusion that there was no embellishment or concoction in the prosecution case. The prosecution case in fact has gained strength on account of immediate recording of the fardbeyan of the informant which having taking shape of dying declaration after the death of the informant by itself would be sufficient to hold the two named appellants as guilty for the occurrence in question. The facts of the present case in fact almost similar to the case of Abrar vs. State of Uttar Pradesh reported in (2011)2 SCC 750 , wherein the Apex Court had dealt with somewhat similar situation and had held as follows:- 11. We have heard the learned counsel for the parties very carefully. It has rightly been pointed out by the learned counsel for the appellant that the entire prosecution story would depend on the dying declarations. We have heard the learned counsel for the parties very carefully. It has rightly been pointed out by the learned counsel for the appellant that the entire prosecution story would depend on the dying declarations. It must be borne in mind that all three dying declarations, the first one which formed the basis of the FIR, the second recorded by the ASI as a statement under Section 161 Cr.P.C. and a third recorded by the Tahsildar are unanimous as all the accused find mention therein. The High Court has by way of abundant caution, already given the benefit to three of the assailants on the plea, that they, though armed, had not caused any injury to the deceased. The motive too has also been established as there appeared to be deep animosity between the parties and that the accused Abrar, the appellant had, in fact, appeared as a witness in several cases in which Mohd. Ashfaq or his son were the accused. 12. It is true that there are some discrepancies in the dying declarations with regard to the presence or otherwise of a light or a torch. To our mind, however, these are so insignificant that they call for no discussion. It is also clear from the evidence that the injured had been in great pain and if there were minor discrepancies inter se the three dying declarations, they were to be accepted as something normal. The trial court was thus clearly wrong in rendering a judgment of acquittal solely on this specious ground. We, particularly, notice that the dying declaration had been recorded by the Tahsildar after the doctor had certified the victim as fit to make a statement. The doctor also appeared in the witness box to support the statement of the Tahsildar. We are, therefore, of the opinion, that no fault whatsoever could be found in the dying declarations. 13. The prompt lodging of the FIR is another circumstance in favour of the prosecution. The incident happened at 9.30 p.m. on 3.4.1979 and the FIR was recorded at 10.30 p.m. i.e. within an hour of the incident under Section 307 I.P.C. 53. We are, therefore, of the opinion, that no fault whatsoever could be found in the dying declarations. 13. The prompt lodging of the FIR is another circumstance in favour of the prosecution. The incident happened at 9.30 p.m. on 3.4.1979 and the FIR was recorded at 10.30 p.m. i.e. within an hour of the incident under Section 307 I.P.C. 53. Thus, after taking into account the material available on the record of this case and in consonance with the principle enunciated by the Hon’ble Apex Court, in the case of Abrar (supra) the specific case of the individual accused is segmentized in two parts as clearly laid down in forgoing paragraphs of judgment. As with regard to appellant Md. Murtuza and Md. Chunnu there is no jolly in evidence as against them save and except application of Section 27 of the Evidence Act based on recovery of the apparel of the deceased. As a matter of fact without any proper identification and in absence of any other connecting link against them to be participant during commission of crime this court cannot draw any adverse inference against them and thus on account thereof, both appellants Md. Murtuza and Md. Chunnu are at least found to be entitled for benefit of doubt. Consequent thereupon finding recorded by the learned trial court as against appellants Md. Murtuza, Md. Chunnu is set aside. Cr. Appeal No. 95 of 1990, Cr. Appeal No.131 of 1990 are accordingly allowed. Both of them are on bail and thus they are now discharged from liability and their respective bail bonds. 54. With regard to appellants Murad Ali @ Lalan as well as Bablu @ Md. Salam, the following common circumstances are visualized against them:- (a) They are named in the fardbeyan (Exhibit-1) as well as in further statement of the deceased (Exhabit-6) and both of them are also (sic-named in ?) dying declaration. (b) There happens to be positive assertion of the deceased with regard to source of their acquaintance and identification since before the occurrence. (c) Lalan @ Murad Ali was apprehended at the first count and his inclupatory extra judicial confessional statement leading to recovery is also proved. Appellant Bablu @ Md. (b) There happens to be positive assertion of the deceased with regard to source of their acquaintance and identification since before the occurrence. (c) Lalan @ Murad Ali was apprehended at the first count and his inclupatory extra judicial confessional statement leading to recovery is also proved. Appellant Bablu @ Md. Salam had escaped and remained away from grip of Investigating Agency for a long period of time without any cogent explanation and this part of his conduct happens to be admissible under Section 8 of the Evidence Act. (Illustration-I) (d) Appellant Lalan @ Murad Ali though had entered into defence but was not able to place any authentic and acceptable evidence to negate the plea of the prosecution that he has got no alias name as Lalan and further he is not brother of Akhtar. (e) Both of them have not been able to demolish the truthfulness and sanctity of the dying declaration of the deceased. 55. In view of our reasons recorded above, we find no merit in the appeals filed on behalf of appellants Bablu @ Md. Salam and Lalan @ Murad Ali and thus their appeals bearing Criminal Appeal (DB) No. 85 of 1990 and Criminal Appeal (DB) No. 140 of 1990 are accordingly dismissed. As both the appellants are on bail, their bail bonds are hereby cancelled and they are directed to surrender before the learned lower court to serve out their remaining period of sentence.