JUDGMENT This appeal is directed against the judgment of conviction dated 01.08.2003 and order of sentence dated 04.08.2003 passed by 1st Additional Sessions Judge, Pakur in Sessions Case No. 102 of 1999, whereby and whereunder appellant has been convicted for the offence under Section 302 of the I.P.C. for committing murder of Noni Sarkar @ Noni Rajbanshi and Sikanto Sarkar @ Srikanto Sarkar and sentenced to undergo imprisonment for life. The court below also directed appellant to pay fine of Rs. 2,000/-and in the event of non-payment of fine undergo simple imprisonment for six months. 2. The case of prosecution in brief as per the fardbeyan of deceased Sikanto Sarkar is that on 05.11.1998 at 6:30 p.m. he and his father Noni Sarkar were present on their omlett shop, at that time itself appellant Gaina Murmu, Mustakin Som Tudu, Moral Marandi, Raska Marandi, Sam Hansda came at their shop. Gaina Murmu ordered for preparing omlett. It is alleged that informant prepared omlett and gave it to the accused persons. Thereafter, some altercation took place between Gaina Murmu and informant's father Noni Sarkar regarding mixing of less quantity of onion in the omlett. Thereafter, Gaina Murmu gave a knife blow on the back of informant's father due to that he fell on the ground and started writhing. It is stated that later on informant's father died on the spot. It is further alleged that when informant went in rescue of his father, Gaina Murmu gave a knife blow on his neck and injured him. It is further stated that in course of occurrence informant's brother and maternal uncle arrived at the place of occurrence and they took him to hospital for treatment, where his fardbeyan recorded by the police. 3. On the basis of aforesaid fardbeyan, Pakur (Muffasil) P.S. Case No. 240 of 1998 dated 06.11.1998 registered under Sections 447, 324, 326, 307, 302/34 of the I.P.C. and police took up investigation. In course of investigation, police prepared Inquest Report of deceased Noni Sarkar. Thereafter, sent his dead body for postmortem examination. It appears that the Doctor, who was attending informant Sikanto Sarkar, had referred him to Calcutta for better treatment. Thereafter, family members of informant took him to Calcutta, where he died in course of treatment on 05.12.1998 in Calcutta National Medical College and Hospital. Thereafter, sent his dead body for postmortem examination. It appears that the Doctor, who was attending informant Sikanto Sarkar, had referred him to Calcutta for better treatment. Thereafter, family members of informant took him to Calcutta, where he died in course of treatment on 05.12.1998 in Calcutta National Medical College and Hospital. It appears that after completing the investigation, police submitted charge sheet against the appellant and other accused persons named in the first information report under Sections 302/34 of the I.P.C. Accordingly, cognizance of the offences taken by the learned Judicial Magistrate. It appears that the learned Judicial Magistrate committed the case to the court of Sessions, as the offence under Section 302 of the I.P.C. is exclusively triable by a court of Sessions. 4. After receipt of the record, learned Sessions Judge transferred the file of the case in the court of Additional Sessions Judge, Pakur for trial. Learned Additional Sessions Judge vide his order dated 08.09.1999 framed charge against the appellant and other accused persons under Sections 302/34 of the I.P.C. and explained the same to them to which they pleaded not guilty and claimed to be tried. Thereafter, prosecution had examined altogether six witnesses in support of its case. The prosecution had also brought on record Ext. -1 (Postmortem report), Ext. -2 (fardbeyan), Ext.-3 (formal F.I.R.), Ext.-4 (death certificate of Sikanto Sarkar) in support of its case. It appears that learned court below, after considering the evidences available on record, had acquitted co-accused Sam Hansda, Raska Marandi, Moral Marandi and Som Tudu. But convicted the appellant Gaina Murmu under Section 302 of the I.P.C. for committing murder of Noni Sarkar and Sikanto Sarkar and sentenced him to undergo imprisonment for life. Against the aforesaid judgment of conviction and order of sentence present appeal filed. 5. Sri B.M. Tripathy, learned senior counsel, who is assisted by Sri Navin Kumar Jaiswal, submits that in the instant case the statement of so-called eye-witnesses P.W.-4 & 5 cannot be relied upon because they were not present at the place of occurrence at the time of occurrence. It is submitted that the informant has not stated in the first information report that P.W.-4, mother of informant, was present at the place of occurrence during the occurrence. It is submitted that the informant has not stated in the first information report that P.W.-4, mother of informant, was present at the place of occurrence during the occurrence. It is also submitted that P.W.-5, the brother of informant, stated that two knife blows inflicted on the deceased Noni Sarkar, but the doctor has found only one injury. Thus, the statement of P.W.-5 does not find corroboration from the evidence of P.W.-1. It is submitted that aforesaid two witnesses P.W. -4 & 5 are highly interested witnesses because they are close relatives of both deceased. It is submitted that in the instant case the death of second deceased namely Sikanto Sarkar had not been proved by the prosecution. It is submitted that there is no documentary evidence available on record to show that Sikanto Sarkar received any injury in course of occurrence and he died because of such injury. Under the said circumstances, his statement in the fardbeyan cannot be looked into. It is submitted that the knife has not been produced to show that the same was used in commission of present crime. It is further submitted that the I.O. has not been examined and therefore a serious prejudice caused to the defence. Accordingly, it is submitted that non-examination of I.O. is fatal to the case of prosecution. 6. On the other hand, Sri Krishna Shankar, learned Additional P.P. submits that in the instant case, the death of informant Sikanto Sarkar has not been denied. He further submits that P.W.-4 & 5, who are mother and brother of deceased Sikanto Sarkar, had categorically stated that Sikanto Sarkar had received injury on his neck and he died due to the said injury in course of treatment. It is submitted that the aforesaid statements of P.W.-4 & 5 remained unchallenged in the cross-examination. He further submits that from perusal of Ext.-4, it is clear that Sikanto Sarkar died in Calcutta National Medical College Hospital on 05.12.1998. Thus, Ext.-4 fully supports the statements of P.W. -4 & 5 that informant died in Hospital in course of treatment. Sri Krishna Shankar further submits that in view of the aforesaid facts and circumstances statement of deceased Sikanto Sarkar in the fardbeyan become relevant and admissible under Section 32 of the Indian Evidence Act. Thus, Ext.-4 fully supports the statements of P.W. -4 & 5 that informant died in Hospital in course of treatment. Sri Krishna Shankar further submits that in view of the aforesaid facts and circumstances statement of deceased Sikanto Sarkar in the fardbeyan become relevant and admissible under Section 32 of the Indian Evidence Act. He submits that in the fardbeyan deceased Sikanto Sarkar had stated that the appellant Gaina Murmu inflicted knife blow on his neck, due to that he received injury on his neck. He submits that the aforesaid statement of informant goes to show that the appellant had committed the present crime. It is submitted that in view of the statement of deceased Sikanto Sarkar read with statements of P.W.-4 & P.W.-5, the prosecution had proved the charge leveled against the appellant beyond the shadow of all reasonable doubt. Thus, no interference required by this Court in this appeal. 7. Having heard the submissions, we have gone through the record of the case. P.W.-1, Doctor Suresh Chandra Sharma, had conducted post-mortem examination on the dead body of Noni Sarkar @ Noni Rajbanshi. He deposed that the deceased received incised stabbed wound on his back. He gave opinion that the deceased Noni Sarkar @ Noni Rajbanshi had died due to shock and hemorrhage caused by aforesaid injury. Thus, the homicidal death of Noni Sarkar @ Noni Rajbanshi has been proved by the prosecution. So far the death of another deceased Sikanto Sarkar @ Sikato Rajbanshi is concerned, it appears that his post – mortem report and injury report are not on record, but P.W.-4 & 5 had categorically stated that Gaina Murmu inflicted knife blow on his neck and he died in Hospital at Calcutta in course of treatment of the said injury. The prosecution had also brought on record the death certificate of Sikanto Sarkar (Ext.-4) issued by Calcutta Municipal Corporation, Health Department, which shows that Sikanto Sarkar died on 05.12.1998 in Calcutta National Medical College Hospital. It is relevant to mention that the defence had not challenged the statement of P.W.-4 & 5 that deceased Sikanto Sarkar died due to injury received by him in course of this incident. It also appears that P.W.-2 & 3, who are hostile witnesses, had also stated that Sikanto Sarkar and his father namely Noni Sarkar had been murdered in the same incident, which took place one year before his deposition. It also appears that P.W.-2 & 3, who are hostile witnesses, had also stated that Sikanto Sarkar and his father namely Noni Sarkar had been murdered in the same incident, which took place one year before his deposition. Thus, in view of evidence of P.W.-2, 3, 4 & 5 read with Ext. 4, we find that the prosecution had proved the homicidal death of informant Sikanto Sarkar. 8. Now the question arose for determination as to whether appellant has any hand in the commission of present crime or not? This bring us to consider the other evidences available on record. P.W. -2 & 3 have been declared hostile, as they have not fully supported the case of prosecution. P.W.-4, is the mother of deceased Sikanto Sarkar, and wife of another deceased Noni Sarkar @ Noni Rajbanshi. She deposed that at the time of occurrence she was present at the place of occurrence and saw that Gaina Murmu had inflicted knife blow on the back of her husband, Noni Rajbanshi. She further deposed that when her son Sikanto Rajbanshi went in rescue his father, Gaina Murmu inflicted injury on his neck by knife. She further deposed that his son was taken to Pakur Hospital, where he gave his statement to the police. Later on her son Sikato Sarkar was taken to Calcutta Medical College Hospital for better treatment, where he died in course of treatment. There is absolutely no cross-examination from this witness regarding the manner of occurrence. However, a suggestion given to this witness that at the time of occurrence she was not present at the place of occurrence. The said suggestion has been denied. It is well settled that a denied suggestion is no evidence. The defence had not brought anything on record to show that P.W.-4 was not present at the place of occurrence. Under the aforesaid circumstance, we find that statement of P.W.-4 is reliable and acceptable. 9. P.W.-5 is brother of Sikanto Sarkar and son of Noni Sarkar. He stated that at the time of occurrence he arrived at the P.O. and saw that Gaina Murmu had inflicted knife injury on the back of his father. Under the aforesaid circumstance, we find that statement of P.W.-4 is reliable and acceptable. 9. P.W.-5 is brother of Sikanto Sarkar and son of Noni Sarkar. He stated that at the time of occurrence he arrived at the P.O. and saw that Gaina Murmu had inflicted knife injury on the back of his father. He also stated that when his brother Sikanto Sarkar went in rescue his father Gaina Murmu inflicted knife blow on his neck, due to that he became injured and taken to Pakur Hospital for treatment, from where he was referred to Calcutta Medical College Hospital, where he died in course of treatment. It is submitted by learned counsel for the appellant that this witness has stated that appellant inflicted two knife blow on the back of his father, but the doctor P.W.-1 has found only one injury on the back. Thus, it is submitted that this witness had not witnessed the occurrence from his own eye. In our view the aforesaid discrepancy in the evidence of P.W.-5 is not so serious that his entire evidence can be thrown over board. We find that P.W.-5 and / or prosecution parties had no inimical relation with the accused persons. Thus, they have no personal grudge to falsely implicate the accused persons including the appellant. It is well settled that the witnesses, who are relatives of deceased, would not spare the real culprit and falsely implicate others, unless they have some cogent reason for doing so. 10. As we have already concluded herein before that the informant Sikanto Sarkar died a homicidal death, therefore, in our view his statement recorded by P.W.-6 as fardbeyan (Ext.-2) will become the dying declaration, because in the said statement he speaks about the transaction, which resulted in his death. A bare perusal of Ext.-2 shows that deceased stated that the appellant inflicted injury on his neck by a knife. It has come in evidence of P.W.-4 & 5 that informant was being treated in National Medical College Hospital, Calcutta for the aforesaid injury and he died on 05.12.1998 in course of treatment. Under the said circumstance, Ext.-2 also shows that appellant inflicted knife injury on the informant, due to that he died. 11. It has come in evidence of P.W.-4 & 5 that informant was being treated in National Medical College Hospital, Calcutta for the aforesaid injury and he died on 05.12.1998 in course of treatment. Under the said circumstance, Ext.-2 also shows that appellant inflicted knife injury on the informant, due to that he died. 11. It is submitted by learned counsel for the appellant that in the instant case a suggestion given to P.W.-6 that the deceased Sikanto Sarkar was not conscious in Pakur Hospital, when his alleged fardbeyan recorded. It is submitted that there is no certificate of the doctor to show that at the time of recording of fardbeyan the deceased Sikanto Sarkar was conscious and was in a position to speak. Accordingly, learned counsel submits that alleged dying declaration cannot be looked in evidence. However, from perusal of statement of P.W.-5, in his cross-examination, we find that he had categorically stated that in his presence his brother gave statement to the police in the Pakur Hospital. It is relevant to mention that P.W.-5 gave his thumb impression on Ext.-2 as a witness. It is well stated that if some statements come in the cross-examination, the same will amounts to an admission by the person, who cross-examine him. Under the aforesaid facts and circumstances, we find that the defence had admitted that in the Hospital informant was conscious and was in a position to give statement. Thus, aforesaid submission raised by learned counsel for the appellant is hereby rejected. 12. It is submitted by learned counsel for the appellant that due to non-examination of I.O. serious prejudice caused to the appellant. Thus, non-examination of I.O. in the present case is fatal to the case of prosecution. In this respect, we find that the defence has not challenged the place of occurrence. There is absolutely no cross-examination of P.W.-4 and no suggestion given to her for eliciting contradiction. Likewise no suggestion given to P.W.-5 that he has not made statement before the police that appellant had inflicted knife blow on the back of deceased Noni Sarkar and gave knife blow on the neck of deceased Sikanto Sarkar. Thus, in our view no prejudice caused to the defence due to the non-examination of I.O. 13. Likewise no suggestion given to P.W.-5 that he has not made statement before the police that appellant had inflicted knife blow on the back of deceased Noni Sarkar and gave knife blow on the neck of deceased Sikanto Sarkar. Thus, in our view no prejudice caused to the defence due to the non-examination of I.O. 13. In view of discussions made above, we find no illegality and/or irregularity in the impugned judgment of conviction and order of sentence, which requires any interference by this Court. 14. In the result, this appeal fails and is accordingly dismissed.