JUDGMENT VINOD PRASAD, J. - Challenge in this appeal by the two appellants Bali Naik/A1 and Budura Chalan/A2, is to the impugned judgment of their convictions u/Ss.302/394 I.P.C. and sentence of life imprisonment with fine of Rs.5000/- (Rupees Five Thousand) and in default to pay the fine to serve additional years (Two years) imprisonment on the first count, 5 (Five years) RI and to pay a fine of Rs.2000/- (Two Thousand) and in default in payment of fine to serve further 1 year (One Year) RI implanted by Additional Sessions Judge, Fast Track Court District Jeypore, in Criminal Trial No.38 of 2006, State versus Bali Naik and another (C.T. 101/06 of Sessions Judge Court) vide impugned judgment and order dated 21.12.2006, which Sessions Trial had arisen from G.R. Case No.799 of 05 of S.D.J.M., Jeypore relating to Jeypore Sadar P.S. Case No.173 of 05. Learned Trial Judge had further directed that the default sentence shall commence first to be followed by substantive sentences which shall run concurrently. 2.A priory, resurrecting prosecution allegations against the appellant, as are apparent from the disgorged testimonies of fact witnesses during the Sessions trial, it emerges that one Gopi Nath Pangi is a resident of village Amkotguda P.S. Jeypore district Korapaut of which Durga Bhatta is an adjoining village at a distance of a Kilo meter from his house. Gopi Nath Pangi has two sons Danial Pangi/PW 4 and informant Chandrasen Panagi/PW 1. Hira Pangi, the injured deceased was the wife of Chandrasen Pangi/PW 1 and was a vegetable seller. Police Station Jeypore is 10 K.Ms. away from the informant’s village. In between Amkotguda and Durga Bhatta lies a canal-Machina Jodi at a distance of half (1/2) a K.M. from the house of the informant which was only a 10 to 15 minutes tramp. Appellant Bali Naik/A1 and the wife Bagabati are the residents of village. Durga Batta, Gauri Chalan, the absconding accused, is the sister of Bagabati and appellant Budura Chalan/A2 is her husband and therefore, in relationship, A1 & A2 are sadhu of each other and absconding accused Gauri Chalan is sister-in-law of A1. Albeit A2 and his absconding wife were originally residents of Village Pandaranguda P.S. Mudulipada district Malkangiri, but they resided with A1 in his village at Durga Bhatta, at the time of the present incident of murder of the deceased Hira Pangi. Albeit A2 and his absconding wife were originally residents of Village Pandaranguda P.S. Mudulipada district Malkangiri, but they resided with A1 in his village at Durga Bhatta, at the time of the present incident of murder of the deceased Hira Pangi. Informant was well acquainted with A1 but he came to know A2 subsequently. Furthe prosecution case is that A1 had taken a loan of Rs.200/- (Rupees Two Hundred only) from the deceased as he was unable to sustain his desiderated needs but it seems that he was unable to make good the said loan. As per prosecution evidence, on the ill fated Monday, the incident day 28.11.2005 at about 6 a.m. deceased Hira Pangi, aged about 33 years, left her house carrying a bamboo basket to sell vegetables like dried and green chillies, red Guards, some Gudakhu and measurements in the shape of tin boxes, towards villatge Durga Bhatta. Sometimes thereafter Kamal Lochan Khatia/PW3 and Kamulu Khatia saw the deceased in a bleeding injured condition and they rushed to inform the informant/PW1 about his wife, and on receiving such an information, that the informant scampered to the tube well where he found his wife, the deceased, lying in an injured condition. PW1 folded injured in his arms and inquired about the mishap. The deceased then informed him that when she had reached near the canal Machina Jodi both the appellants along with their absconding socio crimins Gauri Chalan, encircled and caught hold of her and while rest of the two A2 and his wife, supinely pressed her ( Hira Pangi) on the ground., A1 assaulted on her neck with a Kati (axe)carried by him, in an attempt to snatch her gold necklace called chapsili. In a life saving attempt she (the injured) rushed back towards her house but fell down near the boring tube well. In an endeavour to save the life of his injured wife, who was able to speak by then, PW1 rushed her to Sub Divisional Jeypore Government Hospital, where under treatment the injured succumbed to her injuries at about 12.05 noon. In an endeavour to save the life of his injured wife, who was able to speak by then, PW1 rushed her to Sub Divisional Jeypore Government Hospital, where under treatment the injured succumbed to her injuries at about 12.05 noon. Robbery and assault on Hira pangi had occurred at about 7 a.m. No sooner demise of his injured wife in the hospital, that the informant Chandrasen pangi/PW.1, accompanied with his father Gopinath Pangi, tramped to the Police Station Jeypore, where he orally reported the incident to Pratap Kumar Rana/PW 7, Officer-in-charge Jeypore Sadar Police Station, who slated down the information and, after getting the recorded script confirmed for its genuineness, got it signed by the informant and then treating it as FIR/Ext.1 registered it as crime No.173, u/s.394/302 I.P.C. at 12.20 p.m. the same day 28.11.2005. 3.Investigation was set afoot by the I.P./PW 7, who recorded statements of informant/PW 1, and his father Gopinath Pangi, and also dispatched Constable to guard the corpse of the deceased lying in surgery ward at bed No.3. I.O./P.W.7 then came to the hospital where he performed inquest on the cadaver of the deceased after appointing inquest witnesses, including the informant, and prepared inquest memo Ext.5. Informant’s signature on the memo is Ext, 5/1. Draper of the deceased (Sari), produced by the informant, which was soaked with blood and was got changed by the informant while bringing the injured wife to the hospital, was seized by the I.O. vide Ext. 2and then he dispatched the dead body for post mortem examination through constable C/371 N. Naik and villagers along with dead body chalan/Ext.8.From the hospital I.O./PW 7 came to the incident spot Machina Jodi in village Amkotguda where he sketched spot map/site plan Ext.9. On the west bank of the canal I.O. spotted some tickled down blood spots and one big and two other small baskets with scattered vegetables. Blood stained and sample earths, bamboo baskets, and vegetables were seized vide seizure Memo Ext. 10. On production by the informant/PW1, who had collected two pieces of gold flowers belonging to his deceased wife from the spot of her assault, P.W. 7 seized those gold flowers vide seizure list Ext3, which flowers after being weighed by a goldsmith turned out to be 650 mgs of 18 carat gold. Conducted search for the culprits yielded no results. On production by the informant/PW1, who had collected two pieces of gold flowers belonging to his deceased wife from the spot of her assault, P.W. 7 seized those gold flowers vide seizure list Ext3, which flowers after being weighed by a goldsmith turned out to be 650 mgs of 18 carat gold. Conducted search for the culprits yielded no results. Returning back to the Police Station I.O. seized wearing apparels of the deceased produced by Constable C/371 N. Naik vide seizure list Ext. 11. On 29.11.2005 Gold flowers (phulo Konta), vegetable, rolled gold ear flowers, nose top and to pahuchi of brass (Rosso) were handed over to the informant vide custody memo (zimanama)/Ext. 4.Search for A2 and his wife Gauri Chalan, in village Pandraguda and Khoiriput under Police Station Mudulipoda, on 30.11.2005, by the I.O. was also a futile effect. On 1.12.2005 at 5.45 a.m., I.O. came to the village Amkotguda from where he arrested A1 at 6 a.m., who was proceeding towards jungle area and, in the presence of witnesses Sadan Hantia and Parmanand Dalai, A1 was interrogated, who confessed his guilt and made a statement, Ext.13, about concealment of Kati, the weapon of assault. After recording of his statement, which was got signed by the witnesses and was thumb marked by A1 as well, that the arrested accused brought the witness and the police party to the concealment spot near Machina Jodi, and, from a bush nearby, that he brought out a blood stained Kati/M.O.II, and handed it over to the I.O. which was seized by him vide seizure list Ext.12. Attires of A1 were seized vide seizure list Ext. ‘14.Same day through requisition, Ext.6/2, I.O. sent A1 to Sub-Divisional Hospital for collection of his nail clippings through S.I. Siba Charan Mohanty/PW 6, and later on seized the nail clippings, on production by the said S.I. vide seizure list Ext.7. Apprehended accused A1, thereafter was forwarded to SDJM, Jeypore. On 5.12.2005, I.O. received deceased autopsy report which indicated injury to her wind pipe as the primary cause of her demise. Doctor’s opinion regarding M.O. II to be plausible weapon of crime was sought by the I.O. vide E15 on 23.1.2006, which opinion was received to him on the next day, 24..1.2006, which is Ext. On 5.12.2005, I.O. received deceased autopsy report which indicated injury to her wind pipe as the primary cause of her demise. Doctor’s opinion regarding M.O. II to be plausible weapon of crime was sought by the I.O. vide E15 on 23.1.2006, which opinion was received to him on the next day, 24..1.2006, which is Ext. 15/2 & 15/3.Same day I.O. dispatched apparels of the deceased, of the accused and weapon of assault to RFSL Berhampur, after obtaining orders from SDJM, Jeypore. Forwarding report in this respect is Ext.6. A 2 was arrested on 9.3.2006 by S.I. S.C. Mohanty/PW 6.Gauri Chalan could not be arrested in spite of NBWs. Wrapping up the investigation I.O./PW 7 charge sheeted both the accused A1 & A 2 for offences u/s.394/302 I.P.C. on 29.3.2006. 4.Autopsy on the cadaver of the deceased Hira Pangi was conducted by Dr. Chandradhara Panda, a medicine specialist in Sub-Divisional Hospital, Jeypore, on 28.11.2005, who found the deceased to be thin built, aged about 35 years with medium complexion. Her both eyes and mouth were closed, fists open and blood was over her whole body. No post mortem lividity was present over the dead body which had surgical dressing over her neck and right side face. Physical examination of the corpse revealed inflicted and sustained following two ante mortem injuries. (i)Cut injury stitched with seven no. of stitches of dimension 4" x ½” lying across front of neck at the junction of neck and floor of mouth with sharp margins cutting through larynx and esophaegous (ii)Cut injury of dimension 3 ½ x 1 ½’ x bone deep stitched with five no. of stitches over the right side of the cheek extending from half inch below and one inch lateral to right angle of mouth angle of mouth.” Both the above injuries were caused by sharp cutting weapon and were possible by Kati/M.O.II. Internal disSection revealed that muscles beneath both the injuries were cut and injured with crack fracture of right side mandible bone. Internal organs were looking pale with presence of blood in stomach, trachea, bronchi and lungs. Combined effect of shock and asphyxia caused by haemorrhage and injury to the wind pipe was the root cause of deceased death. Time since death was six hours and sustained injuries were sufficient in ordinary course of nature to cause death. Post Mortem examination report of the deceased is Ext. 8. Combined effect of shock and asphyxia caused by haemorrhage and injury to the wind pipe was the root cause of deceased death. Time since death was six hours and sustained injuries were sufficient in ordinary course of nature to cause death. Post Mortem examination report of the deceased is Ext. 8. 5.As stated above submission of charge sheet initiated Court proceedings against the appellants with registration of G.R. Case No.799 of 05, in the Court of SDJM, Jeypore, who finding the offences triable exclusively by the Sessions Court committed the case to the Sessions Court and dispatched the accused before it. 6.Additional Sessions Judge, Fast Track Court, Jeypore, charged the appellants with offences u/Sc 394 and 302 I.P.C. on 19.10.2006 and, since both the appellants abjured both the charges, pleaded not guilty and claimed to be tried, that their trial commenced during course of which prosecution examined in all eight (8) witnesses, filed eighteen (18) documentary and nine (9) material exhibits. Accused however, did not lead any evidence nor filed any document or material exhibit. Out of examined witnesses informant Chandrasen Pangi/p.W.1, Kamal Lochan Khutia/PW 3, and informant’s elder brother Daneil Pangi/P.W.4, are fact witnesses. Sandan Antuia/PW 2 is a witness of arrest of the accused A1, of his confessional statement and recovery of Kati/M.O.II. Dr. Asis Panigrahi/P.W. 5 and autopay Dr. Chandradhara Panda/PW 8 are the two doctors who had collected nail clippings of the accused vide Ext6 and later had conducted post mortem on the dead body. S.I. Siba Charan Mohanti/P.W.6 and investigating Officer Pratap Kumar Rana/P.W. 7 are the two investigating Officers. 7.Appellant accused, in their defence, did not examine any witness nor tendered any documentary evidences, but in their 313 statements pleaded that they have been falsely implicated in the case which has been foisted against them because of ill feeling harboured by the informant and they are innocent. They denied all incriminating circumstances appearing against them in the prosecution evidence 8.As is apparent from the record, learned trial Court believed the prosecution case and it’s witnesses and concluded that the guilt of the appellants has been established to the hilt and consequently, vide impugned judgment and order, convicted the appellants for both the charges and sentenced them as has already been mentioned herein above. Hence this appeal challenging the recorded conviction and sentence. Hence this appeal challenging the recorded conviction and sentence. 9.In the background of facts elicited as above that we have heard Sri Neelkanth Panda, learned Advocate for the appellants and Mrs. Saswat Pattnaik, learned AGA for the respondent State and have searchingly and critically examined the trial Court record. 10.Castigating impugned judgment and order it is incisively asserted by appellant’s Counsel that the trial of both the appellants is unfair, prosecution has failed to establish the charges and vital significant facts and core issues, which were required to be proved convincingly, have been completely eschewed and hence conclusions arrived at by the learned trial Court is unsustainable and fallible and deserves to be set aside. There is no eye witness to the murder of the deceased and concerning the core issue, as to whether disclosure by the injured wife to the informant is an actual fact or a concocted spurious story to foist a false case against the appellants land nail them in, has not at all been adverted to by the learned Trial Court. Instead of countenancing prosecution allegations, medical evidence snip and inhibit it, which has serious adverse ramifications on the creditworthiness of the prosecution story. No other injury on the dead body was detected by the doctor, except injuries on the neck and mandible and hence, even disclose statement by the injured of throwing her on the ground, is not wholly acceptable and true. Wrapping up, it was urged that prosecution remained unsuccessful in establishing both the charges and hence instant appeal be allowed and appellants be acquitted of both the charges and be set at liberty. 11.Submitting otherwise, learned AGA argued that it is a day light incident and the deceased was capable of telling the names of the culprits when the informant had arrived at the assault spot immediately after the crime was executed and, since she had no time or reason to create a fib against the appellants, that her narration to her hushand/PW-1 is an infallible credit and trustworthy evidence, which cannot be discarded on trivial and inchoate nixing. Medical evidence of the doctor corroborates murder of the deceased by Kati/O.II. recovered at the behest of the A-1 and hence prosecution has satisfactorily and adequately proved the charge against both the accused. Medical evidence of the doctor corroborates murder of the deceased by Kati/O.II. recovered at the behest of the A-1 and hence prosecution has satisfactorily and adequately proved the charge against both the accused. I.O./PW-7 assiduously has snooped the crime without any damaging evidence and resultantly appeal, being bereft of any merit, be dismissed and impugned judgment and order be affirmed concludingly harangued learned AGA. 12.Bestowing thoughtful considerations on the rival submissions, when record is vetted in those lights, ab-initio, some very disturbing and worrying facts emerges indicating that, in all likelihood, neither the investigation was fair nor the trial of both the accused was conducted properly. FIR about the incident was lodged after the deceased had demise and hence Section 394 I.P:.C. had no application. The offence squarely falls within the ambit of Section 397 I.P.C. which is a much more serious crime with minimum sentence of 7 years R.I. Robbery punishable u/s.394 I.P.C. is a peccadillo than offence u/s397 I.P.C. which is more serious genre of offence of robbery. While Section 394 I.P.C. deals with causing of simple hurt in the course of committing robbery, the offender uses a deadly weapon or cause or attempt to cause grievous hurt, the punishment shall not be less than 7 years R.I. From the very beginning prosecution story was that the deceased was thrown on ground and her neck was sliced by !-1 by Kati/M.O.II. in an endeavour by all the three robbers to rob the deceased of her necklace. The culprit miscreants were armed with a sharp cutting deadly weapon nd have definitely caused grievous hurt to the victim resulting in her death. Therefore registration of FIR u/s394 I.P.C. was a total remiss. Precipitously, without an aplomb scanning, learned SDJM also took cognizance of offence u/s.394 I.P.C., whereas he was expected to act assiduously, lin as much as, he was not bound by the offence mentioned in the charge sheet and could have taken cognizance for those offences also which were disclosed from the material contained in it. It is reminded that the Magistrate are not bound by the conclusions derived by the investigating agency and he has to independently apply his mind to the whole facts and materials placed before him to come to a demandable opinion. Same mistake has been committed by the learned Trial Court while prosecuting the appellants accused. It is reminded that the Magistrate are not bound by the conclusions derived by the investigating agency and he has to independently apply his mind to the whole facts and materials placed before him to come to a demandable opinion. Same mistake has been committed by the learned Trial Court while prosecuting the appellants accused. The second apparent error committed by the learned Judge is that he had directed that the default sentence shall run first followed by substantive sentences which shall run concurrently. Un-perspicaciously such a garbled direction was given by the leaned trial Judge. A co-joint reading of Section 30 of Cr.P.C. and 64 I.P.C. leaves no manner of doubt that sentence to be served in default of payment of fine is “in excess of any other substantive sentence”. Thus statue ordains that default sentence shall run only after substantive sentence has been served by a convict. Vice-versa therefore could not have been directed. It is so, also because, as soon as the accused makes the payment of fine good, his default sentence shall come to end immediately as has been enunciated by Sections 68/69 I.P.C. Thus the direction by the learned Trial Judge on this aspect is wholly illegal and unsustainable. Further learned trial Judge completely misdirected himself by not examining as to whether the injury caused to the victim was with an intention to cause her death or it was the outcome of an attempt to rob the injured of her valuables. It was expected of the learned Judge to examine whether it is a case u/s.397 read with 304 (i) I.P.C. or 397/202 I.P.C. This, having not been adverted to at all by the learned trial Judge his whole scanning of evidence on record and separation of grain from the chaff is erroneous. 13.With above observations, now we dwell upon merits of the appeal and urged submissions and, a priory, at this very beginning observe that the appellants, at no stage of the trial had seriously questioned date, time and place of the incident, deceased proceeding to sell the vegetables to village Durga Bhatta and she having sustained sharp edged weapon injuries. 13.With above observations, now we dwell upon merits of the appeal and urged submissions and, a priory, at this very beginning observe that the appellants, at no stage of the trial had seriously questioned date, time and place of the incident, deceased proceeding to sell the vegetables to village Durga Bhatta and she having sustained sharp edged weapon injuries. In absence of any evidence to the contrary, even on a reasonable prognosis of real supposition and suspicious, we irresistibly conclude that the date, time and place of the incident and the prosecution case that, at the time of the incident, deceased was proceeding towards village Durga Bhatta to sell the vegetables and near Machina Jodi she was assaulted with a sharp edged weapon, all these facts in issue, as alleged by the prosecution, stand proved by cogent reliable and trustworthy evidences and hence these aspects do not require any meticulous deliberations for the reason that facts admitted, which also includes facts or issues not challenged at all, need not be proved, is too well settled trite law to be overturned. Vetting of evidences further reveal that there is no eye witness of the incident of actual infliction of injury to the victim deceased. Earliest witnesses, who had spotted the deceased lying in an injured condition, were Kamal Lochan Khatia/P.W.-3 and his companion Karulu Katia wrongly mentioned Kamulu Katia. Except PQW-3 the other witness Karulu (Kamulu) Katia was withheld by the prosecution from testifying in Court. What is most damaging surreal is that, neither in the FIR nor in 161 Cr.P.C. statement, informant PW-1 had named P.W. 3 as the person who had informed him about the injured condition of his wife. Just to obliterated our doubt we have peeped through the case diary and examined 161 statement of the informant, without relying upon it, but only to confirm the veracity of his deposition and find that in both the places he has not named PW-3 but has named non-examined witness Karulu (Kamulu Katia) as the informer. This fact has serious detrimental and deleterious effect on the veracity of the prosecution evidence and irreparably damages it. Added un-recoupable negative fact, for the prosecution, is that even PW-3 does not evidenced that he had seen the appellants assaulting the deceased. He had only seen deceased lying with bleeding injuries on her neck. This fact has serious detrimental and deleterious effect on the veracity of the prosecution evidence and irreparably damages it. Added un-recoupable negative fact, for the prosecution, is that even PW-3 does not evidenced that he had seen the appellants assaulting the deceased. He had only seen deceased lying with bleeding injuries on her neck. He does not speak a word that at that time deceased was capable of speaking. He himself had not tried to sooth the deceased nor has inquired from her about the crime done to her.. His conduct, therefore, caste a serious doubt about his presence at the spot. At that time PW-3 had gone to canal for defecating. Entire evidence of PW-3, whose presence at the spot is highly doubtful, does not brings out any incriminating evidence against the appellants, as it registers only admitted facts which are not disputed by the accused. Since informant had not named PW-3 as the witness who had informed him at the earliest opportunity and subsequently also while giving statement to the I.O., tha it becomes very difficult to rely upon his (PW-3’s) testimony and informant’s version that it was PW-3 who had informed him about the injured condition of his wife. This fact immensely erodes credibility of PW-1’s deposition. Neither PW-1 nor PW-4, who are husband and Jeth (elder brother of the husband) are the eye witnesses of the incident and hence they have no first hand information about it. Their statements are in two parts. About the first part they had no personal knowledge but the second part consists of most incriminating materials against the appellants as it contains the statement by the injured, later on deceased, nailing the appellants as perpetrators of the crime and this is in the nature of her oral dying declaration made to her husband PW-1.Since reliability and genuineness of this dying declaration is singularly the most significant issue involved in the appeal that we now propose to delve on it. 14.Dying declaration, like any other piece of evidence, is subject to scrutiny and can be accepted only when it is free from all reasonable doubts. It is not a rule of law nor of prudence that dying declaration alone cannot form the basis of conviction and it, in all cases, required corroboration. 14.Dying declaration, like any other piece of evidence, is subject to scrutiny and can be accepted only when it is free from all reasonable doubts. It is not a rule of law nor of prudence that dying declaration alone cannot form the basis of conviction and it, in all cases, required corroboration. If, truthful and trustworthy, made at the earliest point of time and recorded as far as possible in the exact words of the deceased, without chances of any tutoring, concoction and fabrication, in a fit state of mind capable of describing circumstances leading to death clearly without any haziness or obscurity, and is not vague, it alone is sufficient to hold accused guilty of a crime. The caution which is required to be observed is only to examine traverse circumstances as above to make it confidence inspiring. The fact that accused has no opportunity of cross examination, dying declaration has to be accepted with extreme caution after ruling out all reasonably possible smudging of it. Without verbosity and verbalise, when facts at hand are tested on the anvil of aforementioned principles, it becomes apparent that the deceased had sustained two sharp edged weapon injuries on her neck. The doctor who had medically examined and had given her first-aid and treated her at the earliest point of time was withheld by the prosecution to its detriment with adverse ramifications. It was only he who could have divulged whether the deceased was in a position to murmur or speak or not since her larynx and esophagus both were cut through and through. No attempt was made by the informant also to disclose to the doctor about the manner in which deceased had sustained those injuries. According to the autopsy doctor, who unambiguously deposed “The person of such injury can produce sound but the sound cannot be understandable as there was cut to larynx” the prosecution gets an adverse evidence from it’s own witness of an unimpeachable nature. This statement of autopsy doctor remains unchallenged by the prosecution. According to the autopsy doctor, who unambiguously deposed “The person of such injury can produce sound but the sound cannot be understandable as there was cut to larynx” the prosecution gets an adverse evidence from it’s own witness of an unimpeachable nature. This statement of autopsy doctor remains unchallenged by the prosecution. In absence of best evidence by the doctor who had first examined the deceased and who had bandaged her wounds, coupled with the fact that informant had also not disclosed complicity of the appellants at the earliest opportunity, which does not completely rule out the possibility of fabrication and concoction, it is very unsafe to rely upon prosecution version that the deceased was capable to speak after sustaining injuries noted hereinabove with cut of her larynx, more so when it is also not decipherable from the prosecution evidence as to what was the time consumed between sustaining of such injuries and reaching of PW.-1 & 4 near her. Admittedly according to PW-1 himself injured/deceased clothes were soaked with blood and he had to change it even before transporting her to the hospital indicating thereby that she had received excessive bleeding injuries. It is also an admitted case of the prosecution that the injured had made her dying declaration in a feeble voice. When examined in the light of statement by autopay doctor a genuine doubt surface regarding making of an audible statement by the injured capable of comprehension by PW-1 & 4 and this does not rule out concoction and fabrication. But for the oral statements, both by PW.-1 & 4, there is no other incriminating material against both the appellants to involve them in the crime. Doubt is also created because the informant had waited till demise of the deceased to divulge about her dying declaration and this had consumed enough time for confabulation. Furthermore exact words of the injured were also not spelt out by both PW-1 & 4. Attour, informant did not disclose to the doctor about the manner in which deceased had sustained those injuries. 15.At this juncture when we advert to the motive alleged by the prosecution of deceased giving a loan of Rs.200/- to A-1, we find that in absence of any fuller details in that respect it is not safe to accept it. Further why A-2 and his wife will join hands with A-1 is also not clear. 15.At this juncture when we advert to the motive alleged by the prosecution of deceased giving a loan of Rs.200/- to A-1, we find that in absence of any fuller details in that respect it is not safe to accept it. Further why A-2 and his wife will join hands with A-1 is also not clear. As has already been discussed, presence of PW-3 at the spot, the sole witnesses who is alleged to have seen the injured deceased on the first occasion after she was assaulted, is extremely doubtful and that we find that there is no other trustworthy convincing incriminating material against the appellants, without admitting reasonable doubt about the veracity of the prosecution evidence, that we find it very unsafe to convict them of both the charges. 16.Turning towards the impugned judgment of conviction, we are of the opinion that the learned Trial Judge had not critically appreciated facts or has made serious endeavour to separate the grain from the chaff. His analysis indicate that he has accepted dying declaration by the deceased to be a gospel truth without examining the real issue as to whether deceased was capable of speaking or not after her larynx were cut and she had bled excessively .the question before the learned Trial Judge was not as to whether dying declaration can be the sole basis of conviction or not ? But the pivotal issue was whether injured was capable of making an audible statement or not ? Recovery of weapon of assault is also not proved, as no disclosure statement by the accused A-1 was brought on record, which is the only fact admissible under Section 27 of the Evidence Act and not the actual recovery. Moreover without bringing on record that nobody else had the same blood group ‘O’ it cannot be determined with any amount of certainty that it were only the appellants who had caused injuries to the deceased/injured. Further recovery was made from an open place assessable to all the sundry and hence specific knowledge about the same cannot be attributed only to A-1. Moreover no recovery of any ornament has been made from the accused. Mere absconding of the accused is insufficient to hold them guilty of an offence of murder. Learned trial Judge has completely eschewed to register as to what is admissible u/s. 27 of the Evidence Act. Moreover no recovery of any ornament has been made from the accused. Mere absconding of the accused is insufficient to hold them guilty of an offence of murder. Learned trial Judge has completely eschewed to register as to what is admissible u/s. 27 of the Evidence Act. No part of disclosure statement was proved by the I.O. and hence Section 27 of Evidence Act cannot come to the rescue of the prosecution which is expected to establish the charge independent of weaknesses of the accused. Even according to the prosecution deceased had not named any culprits but had uttered “‘sadu of Bali’ and had shown three with fingers These statements, first of all, are extremely doubtful, and secondly they do not establish guilt of the appellants conclusively. 17.Epilogue of what we have stated herein above, we are of the view that prosecution has failed to establish the charges against both the appellants to the hilt without admitting reasonable doubt and consequently we allow the appeal by both the appellants, set aside the impugned judgment and order and thereby, conviction and sentences of the appellants and acquit them of both the charges. From the appeal records it appears that both the appellants Bali Naik, A-1 and Budura Chalan, A-2 are in fail. They are directed to be set at liberty forthwith unless they are required in custody in connection with any other offence. 18.Appeal is allowed as above. 19.Let the trial Court be informed. BISWANATH RATH, JI agree. Appeal allowed.