JUDGMENT : Heard the parties. 2. This criminal appeal has been directed against the judgment of conviction and sentence dated 06.06.2006 and 07.06.2006 respectively, passed by the Ist Additional Sessions Judge, Dumka in Sessions Trial No. 305 of 2003 arising out of Kathikund P.S. Case No. 25/2003 corresponding to G.R. No. 456/2003 whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and also to pay fine of Rs.5,000/- and in default of making payment of fine, further R.I. for a period of two years. 3. The facts emerging from fardbayan of Sohagini Hansda, wife of Late Hopna Marandi recorded on 21.05.2003 at 2:30 hrs. is that appellant Babu Ram Marandi is own brother of her husband Hopna Marandi. After death of her husband, her brother-in-law Babu Ram Marandi kept sister of the informant as his wife and he wanted to oust the informant from the house with an intention to grab her properties. On the date of occurrence i.e. 20.05.2003, the appellant claimed share of paddy which was grown by the informant. When she refused to partition the paddy, the appellant chased the informant and her mother and caused injuries to them by means of knife. After having injuries, the informant and her mother entered in the house of Pardhan and fell down. On the following day, fardbayan of Sohagini Hansda was recorded and case being Kathikund P.S. Case No. 25/2003, dated 21.05.2003, for the offence punishable under Section 302, 324, 326 and 307 of the Indian Penal Code against appellant was registered. The investigation was carried out and charge-sheet was submitted and accordingly, cognizance was taken against sole appellant Babu Ram Marandi. The case of accused Babu Ram Marandi was committed to the Court of Sessions and registered as S.T. No. 305/ 2003. Charges under Section 302, 307, 324 and 326 of the Indian Penal Code were framed to which he pleaded not guilty and claimed to be tried. To substantiate charges, the prosecution has examined nine witnesses including the Doctor and the Investigating Officer. The learned Additional Sessions Judge, Dumka at the conclusion of trial held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code but acquitted him from the charges under Sections 307, 324 and 326 of the Indian Penal Code. 4. The learned Additional Sessions Judge, Dumka at the conclusion of trial held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code but acquitted him from the charges under Sections 307, 324 and 326 of the Indian Penal Code. 4. The appellant has assailed the impugned Judgment and sentence mainly on the ground that prosecution has miserably failed to bring home the charges framed against the appellant. Admittedly no direct evidence against the appellant is available. The informant has not been examined and except the informant there is no eye-witnesses to the occurrence. The contention made in the fardbayan has not been proved. The informant has said that he was subjected to assault by the appellant by means of knife on her back but the doctor A.L. Mahato (P.W.4) has proved injury report as Ext3 and he says that injuries were caused by hard and blunt substance and he cannot say that injuries found on the person of the informant may also be possible by sharp cutting weapon. In his cross-examination he has again said that injuries were caused by hard and blunt substance. Harui Lal Tuddu (P.W.1), Nirmal Kumar Hembrom (P.W.2) and Paul Kisku (P.W.3) are the hearsay witnesses and they had seen the deceased and the informant entering in the house of Pardhan. When they went there, the informant disclosed that they were assaulted by Babu Ram Marandi (appellant). But in the cross-examination they admits that they had not seen any occurrence and the informant had not disclosed anything before them. It is submitted that Gopal Kisku (P.W.5) and Sundari (P.W.7) are also hearsay witnesses. Both the witnesses have tried to bring on record oral dying declaration but that statement given by aforesaid two witnesses cannot be relied upon unless it is being corroborated by other witnesses. In this context non-examination of the informant is fatal. She is the only person who could have thrown light on actual incident but the prosecution did not produce her for the reasons best known to them. According to statements of P.Ws.1, 2, 3 and 5 the appellant was apprehended and he was produced before the Police but the Investigating Officer has not recovered the weapon used for commission of the offence. Blood-stained soil collected from the place have not been sent for its chemical examination. According to statements of P.Ws.1, 2, 3 and 5 the appellant was apprehended and he was produced before the Police but the Investigating Officer has not recovered the weapon used for commission of the offence. Blood-stained soil collected from the place have not been sent for its chemical examination. The Investigating Officer himself is not sure as to when inquest report was prepared. At one point of time he says that it was prepared in the morning on 21.05.2003 but again he says that it was prepared on the next day. The learned Additional Sessions Judge has mis-appreciated the evidence on record and has committed error in holding the appellant guilty for the offence of murder. 5. Learned APP has opposed the arguments and submitted that informant has not been examined but fardbayan has been proved by the Investigating Officer. Hari Lal Tuddu (P.W.1), Nirmal Kumar Hembrom (P.W.2) and Paul Kisku (P.W.3) have categorically stated that they had seen the informant and her mother entering in the house of Pardhan and they were having injuries on their person. In their examination-in-chief they have supported the prosecution case but they were not cross-examined on the date of their examination-in-chief. Later they were cross-examined on recall and by that time they were influenced and therefore, they had gone to the extent of saying that they did not have any talk either with the deceased or with the informant. Learned APP has given stress on the statement of Gopal Kisku (P.W.5) and Sundari (P.W.7). Sundari is the mother of Pardhan in whose house the informant and deceased had taken shelter after receiving injuries. The deceased had disclosed name of the appellant to Sundari and said that her soninlaw had caused injuries to her. The same statement found corroboration from the statement of P.W.5. The learned Trial Judge has rightly relied upon the oral dying declaration of the deceased given before P.W.5 and P.W.7. There is no merit in this appeal and this appeal is liable to be dismissed. 6. We have carefully examined the case record, perused the evidence and documents and gone through the impugned Judgment of conviction and sentence. According to evidence available on record, the informant and deceased after receiving injuries inflicted by appellant, entered in the house of Pardhan and fell down. This was noticed by P.Ws. 1, 2, 3, 5 and 7. 6. We have carefully examined the case record, perused the evidence and documents and gone through the impugned Judgment of conviction and sentence. According to evidence available on record, the informant and deceased after receiving injuries inflicted by appellant, entered in the house of Pardhan and fell down. This was noticed by P.Ws. 1, 2, 3, 5 and 7. In the examination-in-chief, aforesaid five witnesses have corroborated this fact that the informant and her deceased mother had disclosed name of appellant who inflicted injuries to them by means of knife. In cross-examination, P.Ws. 1, 2 and 3 did not support this fact that they had had talk with the informant and deceased. P.Ws.5 and 7 stick to their statement even in the cross-examination. Admittedly, there is no eye-witness to the occurrence. The informant who had sustained injuries in the incident, has not come forward to support the prosecution case. In such circumstances we have to consider whether conviction and sentence recorded under Section 302 of the Indian Penal Code on the basis of statement of P.Ws.5 and 7 could be upheld. These two witnesses have admitted that they had not seen the incident of assault and they did not see the appellant chasing her mother to cause injury. The sum and substance of evidence of P.Ws.1, 2, 3, 5 and 7 is that they had seen two ladies i.e. informant and her mother entering in the house of Pardhan and P.W.7 is the mother of Pardhan. P.W.5, in para-2 of his cross-examination says that he could not able to say as to how that old lady had sustained injuries. In para-3 he says that she was running in the alley (Kulhi) raising alarm for help. Then he went in the house of Pardhan and asked that old lady then she told that her son-in-law has caused injuries to her. Again he says that he had not gone to the place of occurrence. Considering all these contradictions appearing in the statement of P.W.5, we do not feel it safe to upheld conviction and sentence under Section 302 of the Indian Penal Code. Now coming to the statement of P.W.7. Again he says that he had not gone to the place of occurrence. Considering all these contradictions appearing in the statement of P.W.5, we do not feel it safe to upheld conviction and sentence under Section 302 of the Indian Penal Code. Now coming to the statement of P.W.7. In para-3 she says when she was asking the injured and deceased about the occurrence, nobody was present in her house and therefore statement that Babu Ram Marandi had caused injuries to them by means of knife, stood uncorroborated from any other witnesses. At this juncture it is also important to note that P.Ws.1, 2, 3 and 5 have said that they had gone to the house of Pardhan after seeing those two ladies entering in the house but their presence has not been certified by P.W.7. Considering aforesaid aspects of the matter we do not feel it safe to rely only on the oral dying declaration which has been brought by P.Ws.5 and 7 and that too in absence of examination of informant who is an injured eye-witness. 7. Considering all these aspects of the matter, we feel inclined to allow this appeal and accordingly, the judgment of conviction and sentence dated 06.06.2006 and 07.06.2006 respectively, passed by the Ist Additional Sessions Judge, Dumka in Sessions Trial No. 305 of 2003 arising out of Kathikund P.S. Case No. 25/2003 corresponding to G.R. No. 456/2003 is hereby set aside. The appellant, named above, who is in custody, is directed to be released forthwith, if not wanted in any other case and for that the convicting court/ successor court shall issue directions, if needed In the result this appeal stands allowed. Appeal allowed.