JUDGMENT NAVANITI PRASAD SINGH, J. 1. The sole-appellant has preferred this appeal against the judgment of conviction dated 21.12.1990 passed by the 4th Additional District and Sessions Judge, Motihari and sentence dated 22.12.1990, arising out of Sessions Trial No. 300 of 1962 of 1982 of 1987, whereby for an offence under Sections 302 of the Indian Penal Code (in short ‘IPC’) the appellant has been sentenced to life imprisonment. 2. We deem it proper to record that this appeal was admitted for hearing on 20.02.1991 and when it was taken up for final hearing Mr. Anil Kumar Singh, one of learned counsels who had filed this appeal, stated that in spite of several registered letters, he has not received any instruction in recent time. In fairness to the learned counsel, he agreed to assist us at our request. 3. Strangely enough, the present case is as a result of dispute over possession of ladies resulting in death of a person, having been allegedly, stabbed by the other. The prosecution case is based upon the fardbeyan of one Girja Devi. Even though she was the informant and an eye-witness to the entire episode, she has not been examined by the prosecution. Interestingly enough she also happens to be the wife of the appellant. The fardbeyan is recorded at Sadar Hospital, Motihari at about 3:30 pm on 09.08.1981. In the fardbeyan, which is Ext.2 and is recorded by the Investigating Officer, Devendra Prasad (P.W.8), she states that she is the wife of Wakil Mian, the deceased and resident of village Singhia, P.S. Banjaria, District East Champaran. On the fateful day at about 2:00 pm the couple had come to the house of one Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4). It is alleged that the appellant came on a cycle and told that they should end litigation by paying Rs. 400.00 each upon which Wakil Mian, the deceased, said that he would pay the same after selling bricks tomorrow. Thereupon, it is alleged that the appellant stabbed Wakil Mian and tried to escape when Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4) caught hold of him and handed him to the Hawaldar who came on hearing the shouts. She then carried the injured Wakil Mian on a rickshaw to the hospital where he was being operated. In the hospital, Wakil Mian’s earlier wife, Bibi Wakilan and others also arrived. She then carried the injured Wakil Mian on a rickshaw to the hospital where he was being operated. In the hospital, Wakil Mian’s earlier wife, Bibi Wakilan and others also arrived. On this fardbeyan the present case was instituted and registered under Sections 324 & 327 IPC, which was later, upon the death of Wakil Mian, late in the night itself it became a case under Section 302 IPC. After investigation, police submitted charge-sheet against the appellant. Upon cognizance being taken, the case was committed for trial to the Sessions where charges having been framed and appellant being pleaded not guilty the trial commenced. 4. In order to establish the guilt, the prosecution has examined in all nine witnesses. Defence has also examined two witnesses. P.W.1 is Bibi Wakilan, the earlier wife of the deceased Wakil Mian. P.W.2 is Md. Hanif, the son of the deceased. P.W.3 is Aziz Mian, the father of the deceased. P.W.4-Shambhu Lal Sah @ Shambhu Lal Teli is the sole examined eye-witness in whose house the incident is alleged to have taken place. P.W.5 is Hafiz Mian @ Hafi Mian who is merely the person who gave the information to the family of the deceased about the deceased being stabbed. P.W.6-Rajendra Prasad is a formal witness to corroborate the signature of one Nagendra Prasad on seizure list of material evidence. P.W.7 is Ramakant Verma who is witness to seizure list of material evidence. P.W.8 is Devendra Prasad, the Investigating Officer and also the person who recorded the fardbeyan. P.W.9 is Dr. Krishna Kishore Bajpayee who conducted the postmortem of the deceased and submitted its report. The informant Girja Devi is not examined by the prosecution. The two defence witnesses are D.W.1-Shambhu Saran Singh, Advocate who admits having drafted a protest petition at the instance of Bibi Wakilan (P.W.1), which was filed before the Chief Judicial Magistrate in this case and D.W.2 is the typist who had typed the same. The protest petition is Ext.B and the signature of D.W.1 is Ext. A. 5. Before proceeding further, having perused the various evidences, it is necessary to bring out certain relationship to be able to understand the sequence of events. The deceased Wakil Mian is supposed to be a brick kiln owner. He was/is married to Bibi Wakilan (P.W.1). P.W.2 is his eldest son and P.W.3 is his father. A. 5. Before proceeding further, having perused the various evidences, it is necessary to bring out certain relationship to be able to understand the sequence of events. The deceased Wakil Mian is supposed to be a brick kiln owner. He was/is married to Bibi Wakilan (P.W.1). P.W.2 is his eldest son and P.W.3 is his father. The informant Girja Devi, who has not been examined, was the wife of the appellant. She has a niece Chatia Devi. Allegedly, Wakil Mian (deceased) and Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4) were being prosecuted by the appellant for having abducted Girja Devi and Chathia Devi, who were later recovered from the house of one Rahman Mian, a relative of Wakil Mian, but, thereafter Wakil Mian started living with Girja Devi and Chathia Devi, the niece of Girja Devi, started living with Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4). So much so, it is alleged that Girja Devi has then married Wakil Mian because in the fardbeyan itself she states herself to be the wife of Wakil Mian, the deceased. Thus, the whole fight is for possession and repossession of ladies. 6. P.W.1-Bibi Wakilan states that while she, her husband, Wakil Mian and her family members were at their village home Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4) and one ‘Taid’ Jawahar Sah (not examined) came and asked them to come to Motihari for compromising a matter. Accordingly, Wakil Mian went to the house of Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4). At about 2’o clock in the afternoon one Hafiz Mian @ Hafi Mian (P.W.5) came and informed her (P.W.1) that her husband Wakil Mian had been stabbed and was being taken to Motihari Sadar Hospital and they should reach there. Accordingly, P.W.2-Md. Hanif, her son went on a bicycle while the rest went on rickshaw to the Sadar Hospital where they found Girja Devi from whom she learnt that Wakil Mian was being operated. After he was operated and his wounds had been stitched, he (the deceased) allegedly said that in the house of Shambhu Lal Sah @ Shambhu Lal Teli two to three people had caught hold of him and the appellant had stabbed. Late in the night Wakil Mian succumbed to his injuries. She said that her son, father-in-law and others were present when Wakil Mian made this statement. Her testimony remains unshaken in cross-examination. Late in the night Wakil Mian succumbed to his injuries. She said that her son, father-in-law and others were present when Wakil Mian made this statement. Her testimony remains unshaken in cross-examination. In cross-examination, she admits that 6 to 7 days after the case was instituted she had filed a protest petition in the case. She denies any knowledge of any case instituted by the appellant against Wakil Mian and Shambhu Lal Sah for alleged abduction of Girja Devi and Chathia Devi. She accepts knowing Girja Devi but states that she does not know Chatia Devi. 7. The next witness is Md. Hanif P.W.2, the son of the deceased. He states that having reached the hospital and found Girja Devi there the doctors asked him to get blood for which he went to Muzaffarpur and returned in the evening when Wakil Mian after operation had gained consciousness. He (the deceased) allegedly stated that the appellant had stabbed him and he died later in the night. In his chief, he has stated that it was Shambhu Lal Sah and Jawahar Sah (Taid) who had come to their house, asked his father to come for panchayati as also earlier the appellant had also come. He admits that the appellant had instituted a case against his father and Shambhu Lal Sah @ Shambhu Lal Teli but he did not know the particulars thereof. He denies the suggestion that Girja Devi and Chathia Devi were working as labourers in the brick kiln of his father, Wakil Mian. He denies of having any knowledge of Chathia Devi living with Shambhu Lal Sah @ Shambhu Lal Teli at Gandhi Nagar, Motihari. He denies of having knowledge of his mother having filed any protest petition. 8. We then have P.W.3-Aziz Mian, the father of the deceased. He states that upon being informed about his son having been stabbed and was taken to hospital, he along with others went to hospital where he was told that operation was being conducted. After the operation Wakil Mian his son allegedly disclosed that the appellant has stabbed him and later in the night he died. He denies the suggestion that there was illicit relationship between Girja Devi and his son, Wakil Mian. He denies having knowledge that there was illicit relationship between Chathia Devi and Shambhu Lal Sah. He denies knowing that Girja Devi was married to the appellant. 9. He denies the suggestion that there was illicit relationship between Girja Devi and his son, Wakil Mian. He denies having knowledge that there was illicit relationship between Chathia Devi and Shambhu Lal Sah. He denies knowing that Girja Devi was married to the appellant. 9. From these three witnesses one thing is common and consistent. Wakil Mian was brought to the hospital having been stabbed. He was operated. He was unconscious. Upon regaining consciousness he could only disclose that appellant had stabbed him. He died later in the night. This statement was made by the deceased in presence of not only these three witnesses but others as well. 10. The next witness for the prosecution is P.W.4-Shambhu Lal Sah @ Shambhu Lal Teli. He gives a little different version of the occurrence. He states that at about 2’o clock in the afternoon Girja Devi, Chathia Devi and Wakil Mian had come for panchayati. They all were quarrelling themselves and the appellant had also come enquiring about Wakil Mian. The appellant was told that the Wakil Mian was there. Thereafter, the appellant entered into the house, stabbed Wakil Mian and when he tried to run this witness chased him and caught him. This led to a lot of shouting, hearing which Nagendra Prasad, Ramakant Verma and the Hawaldar also came there. Hawaldar was handed over the custody of the appellant. In his cross-examination, this witness admits that Wakil Mian was stabbed by the appellant in ‘Sahan’ outside his hut. He was not in the ‘Sahan’ at that time but rushed there when Girja Devi shouted and saw the incident. He denies knowing Chathia Devi before the occurrence. He denies knowing that she is the niece of the appellant. He also goes to the extent of denying any knowledge that Girja Devi was the wife of the appellant. He denies having abducted Chathia Devi. He denies having any knowledge of the appellant having filed any case against Wakil Mian and him for the adbudction of Girja Devi and Chathia Devi. He denies that Girja Devi and Chathia Devi were recovered from the house of Rahman Mian at Chatauni. He also denies the suggestion that there was altercation between Wakil Mian and him with regard to the ladies in which Wakil Mian sustained injuries. 11. Then we have P.W.5-Hafiz Mian @ Hafi Mian. He denies that Girja Devi and Chathia Devi were recovered from the house of Rahman Mian at Chatauni. He also denies the suggestion that there was altercation between Wakil Mian and him with regard to the ladies in which Wakil Mian sustained injuries. 11. Then we have P.W.5-Hafiz Mian @ Hafi Mian. He is only relevant so far as he states that in the market he had seen Girja Devi taking the injured to the hospital when Wakil Mian asked him to inform his family that he had been stabbed and Wakil Mian did not disclose any name and how it happened. 12. We then have P.W.6-Rajendra Prasad. He is only relevant in so far as he proved the signature of one Nagendra Prasad on the seizure list in relation to recovery and seizure of bloodstained mud. P.W.7 is Ramakant Verma. He is the witness to the said seizure list. He works in the Animal Husbandry Department. He has also been the Ward Councilor. He states that Shabmbhu Lal Sah has a hut where he was keeping Chathia Devi and Wakil Mian used to visit there. The people of the neighbourhood had protested at these nefarious activities as Chathia Devi was being kept as a concubine. It is because of these reasons that there was apparently dispute between Shambhu Lal Sah and the deceased, though the appellant is in the dock he does not recognize the appellant. He further states that when he had heard the news he had gone to the house of Shambhu Lal Sah but did not find the Shambhu Lal Sah there. 13. We then have P.W.8-Devendra Prasad, the Investigating Officer. He states that he had received a requisition from the hospital and upon that he had gone to the Sadar Hospital, Motihari where he recorded the statement of Girja Devi. The fardbeyan is Ext.2, which was formally registered as an F.I.R. and is Ext.3. He then states that apparently the assault took place about 6 ft. away from the hut in the ‘Sahan’ from where he collected blood-stained mud for which seizure list was prepared, which is Ext.4. He then took the statements of various persons. Hawaldar, Hari Kishore Singh (not examined) produced a knife allegedly used by the appellant, which was seized, as per the seizure list Ext.4/1. He has prepared the inquest report in the hospital, which is Ext.5. He then took the statements of various persons. Hawaldar, Hari Kishore Singh (not examined) produced a knife allegedly used by the appellant, which was seized, as per the seizure list Ext.4/1. He has prepared the inquest report in the hospital, which is Ext.5. He submitted the charge-sheet against the appellant. In the cross-examination, he admits that the knife was produced by the said Hawaldar, Hari Kishore Singh at the Police Station. He admits that he had not sent the knife for any forensic examination. He states that he had searched for Shambhu Lal Sah (P.W.4) but could not find him as he was not at home. He took the statement of Chathia Devi (not examined). He admits in the cross-examination that P.W.3-Aziz Mian, the father of the deceased, had disclosed to him that it was P.W.1-Bibi Wakilan who had told him that the deceased had named the appellant as the person who stabbed. He has also admitted that having received the custody of the appellant from the Hawaldar, Hari Kishore Singh at the place of occurrence he had sent him for judicial remand. 14. We then have P.W.9-Dr. Krishna Kishore Bajpayee, who is the doctor, who has performed the postmortem examination of the deceased at the Motihari Sadar Hospital. He is only relevant to the extent that there was a piercing deep injury by a sharp cutting weapon (knife) which had cut the liver of the deceased into two pieces. 15. Thus, from the over all perusal and appreciation of the evidence of the prosecution, one thing is clear that the fardbeyan states that the appellant had stabbed the deceased. The eye-witness P.W.4 also states the same. P.Ws.1, 2 & 3 also state that the deceased upon regaining consciousness had just disclosed the name of the appellant as the person who had stabbed him. The appellant was apprehended at the place of occurrence itself. This fact, we think, is material which is consistent in the prosecution evidence. 16. Learned counsel for the appellant points out that the genesis or the manner in which the occurrence took place varies as different witnesses have stated. In our opinion, a little here and there varies but that does not affect the substantive charge on which the evidence is consistent. There is no suggestion also at any point of time that the appellant had not stabbed or that someone else had stabbed the deceased. In our opinion, a little here and there varies but that does not affect the substantive charge on which the evidence is consistent. There is no suggestion also at any point of time that the appellant had not stabbed or that someone else had stabbed the deceased. 17. However, the learned counsel for the appellant placed much stress on the defence witnesses, it would be appropriate for us to examine the same. D.W.1 is Shambhu Saran Singh, an Advocate. He admits that sometime after the case with regard to murder of Wakil Mian was registered Bibi Wakilan (P.W.1), the wife of Wakil Mian had got drafted a protest petition from him. The protest petition was signed by Bibi Wakilan and the Advocate, which signature is Ext. A. D.W.2 is Samsul Haque, who is a typist in the Civil Court and having admitted that he had typed the protest petition at the instance of Bibi Wakilan. He identifies the protest petition, which is marked as Ext. B. With reference to Ext. B, learned counsel for the appellant points out that this gives a completely different version of the whole thing and totally discredited the sole examined eye-witness, Shambhu Lal Sah @ Shambhu Lal Teli (P.W.4). Ext. B, the protest petition of Bibi Wakilan states that the ‘Taid’ Jawahar Sah and Shambhu Lal Sah (P.W.4) had caught hold of Wakil Mian to facilitate the appellant stabbing him. It virtually makes Jawahar Sah and Shambhu Lal Sah (P.W.4) co-conspirators. He submits that in order to escape from the criminal liability Shambhu Lal Sah (P.W.4) has become a prosecution eye-witness. His testimony should, thus, be rejected and, if that be so, then there is no eye-witness examined in respect of the occurrence or the manner thereof. We are unable to accept this. The reason being that again one thing is consistent even in this protest petition that it is that it is the appellant who stabbed the Wakil Mian as a consequence whereof he later died. This is consistent with all the evidence that has come on record. We cannot accept a part of the protest petition and reject the other. The reason being that again one thing is consistent even in this protest petition that it is that it is the appellant who stabbed the Wakil Mian as a consequence whereof he later died. This is consistent with all the evidence that has come on record. We cannot accept a part of the protest petition and reject the other. Therefore, even if we accept the part that Shambhu Lal Sah (P.W.4) had held Wakil Mian it is of no consequence because that cannot absolve of the appellant of liability of stabbing Wakil Mian because in the same protest petition it is explicitly stated that it was the appellant who stabbed the Wakil Mian. Thus, we find this part of the evidence against the appellant to be consistent through out and which has not been shaken in any manner much less by any suggestion to that effect given on behalf of the appellant in this regard. 18. On behalf of State, it is urged that apart from other evidences, i.e. the fardbeyan and the depositions of witnesses, we have the wife of the deceased, the son of the deceased and the father of the deceased, being P.Ws.1, 2 & 3 respectively, who state that after the operation upon the deceased, when he regained consciousness, he disclosed that it was the appellant who had stabbed him. It is, thus, submitted that it is an oral dying declaration which can be relied upon. Learned counsel for the appellant states that it is not permissible inasmuch as it was not recorded by any Magistrate nor any Magistrate was called nor was the Police Officer available there nor was he informed of this. 19. In our view, we have to tread very carefully and cautiously in this regard. We have first to see that a person making the alleged dying declaration was fully in a conscious state to make a clear statement then we have to see as to in whose presence it was made and whether there are any other corroborative evidence consistent with the statement. We may refer to a recent decision of the Apex Court in the case of Parbin Ali and Another vs. State of Assam, (2013) 2 SCC 81 , wherein the Apex Court has placed reliance on an oral dying declaration consistent and corroborated by other evidences. We may refer to a recent decision of the Apex Court in the case of Parbin Ali and Another vs. State of Assam, (2013) 2 SCC 81 , wherein the Apex Court has placed reliance on an oral dying declaration consistent and corroborated by other evidences. It has, inter alia, been held in the facts of that case as well that the injury being homicide and the fact that the deceased was conscious and capable of making a statement, having not been challenged and the statement having been corroborated, then such an oral dying declaration could be relied upon and the conviction based thereon could not be faulted. 20. Here, the very first version given by the wife or we may say the ex-wife of the appellant clearly stated that it was the appellant who stabbed the deceased in the house of Shambhu Lal Sah (P.W.4). Shambhu Lal Sah (P.W.4) also states the same. The appellant is arrested on the spot. There is no suggestion for stabbing by other. Seeing from this point of view, the oral dying declaration is consistent. The defence has not cross-examined the doctor nor suggested that the deceased was in no position to make any statement. In such view of the matter, we find that the oral dying declaration could in these facts and circumstances be relied upon, but once again we are obliged to sound a word of caution that lest prosecution starts taking undue advantage of this proposition by putting words in the mouth of a person who cannot be examined by reason of his death. We have to be cautious in such matters. 21. Thus, in our view, there is no cause to interfere with the conviction and sentence of the appellant. This appeal is devoid of any merit and is dismissed accordingly. The bail bond of the appellant is cancelled. The appellant is required to surrender before the Court below to serve the remaining sentences.