JUDGMENT : By the Court.-This criminal appeal is directed against the judgment and order of conviction and sentence dated 01.02.2007 and 02.02.2007 respectively passed by the learned Additional Sessions Judge, Fast Track Court No.-III, Jamshedpur, in S.T. No. 4 of 2004 arising out of Patamda P.S. Case No. 39 of 2003, corresponding to G.R. No. 1237 of 2003, convicting the present appellant under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life. 2. The case of the prosecution on the basis of the fardbeyan of Shrinath Sabar is that on 24.07.2003 at about 6.00 p.m. when he was present at his house, all of sudden, he heard an alarm that someone has stabbed his brother. On hearing the alarm, the informant rushed and saw that at a distance of 100 yards, by the side of the road, his brother Sahdeo (deceased) was lying in pool of blood and blood was also oozing from the side of the chest but he was conscious. Thereafter, the informant with the help of others brought the injured Sahdeo in the house and asked as to how this occurrence occurred. At this, the deceased narrated that he was returning from the Hat to his house along with Ramdhan Sabar and Shankar Majhi. On the way Ramdhan and Shankar moved a bit forward and all of a sudden Bhuwan Singh came in front of him and threatened that the family of the deceased is objecting him and as such today he will kill the deceased. Thereafter Bhuwan Singh took out knife from his pocket and give a knife blow at the chest near collar bone. After narrating the incident, the deceased died. It is further stated by the informant that Ramdhan Sabar and Shankar Majhi also came there and narrated that the deceased was coming with them. The deceased remained back to them and all of sudden he raised alarm and then they saw that Bhuwan Singh @ Bhuku was giving knife blow on the person of the deceased Sahdeo. On seeing this, Ramdhan rushed and caught hold of the hand of Bhuwan Singh but Bhuwan Singh tried to release his hand forcibly and in course of releasing, Ramdhan had sustained cut injury on his hand. Thereafter, Bhuwan Singh fled away. They further stated that by seeing the occurrence, they got afraid and fled towards their house. 3. On seeing this, Ramdhan rushed and caught hold of the hand of Bhuwan Singh but Bhuwan Singh tried to release his hand forcibly and in course of releasing, Ramdhan had sustained cut injury on his hand. Thereafter, Bhuwan Singh fled away. They further stated that by seeing the occurrence, they got afraid and fled towards their house. 3. After registering the case, the police investigated the matter and after completion of investigation, charge sheet was submitted against the present appellant under section 302 of the Indian Penal Code. 4. The defence of the accused-appellant is of complete denial. 5. In order to prove the charges framed against the appellant, the prosecution has examined altogether 17 witnesses including two Doctors. P.W. 5 and P.W.17 are the eye witnesses to the occurrence. P.W.12 is the brother of the deceased and informant of the case. He claims to be the eye witness to the occurrence. P.W.9 is the widow of the deceased. P.W.6 is the Doctor, who had conducted the autopsy on the dead body of the deceased and proved postmortem report (Ext.-2). P.W.16 is another Doctor, who had examined the injured witness (P.W.-5) and proved the injury report (Ext.-8). The injury was caused by sharp cut weapon. P.W. 13 and P.W. 14 are the witnesses to the seizure of knife and they have proved their signatures on the seizure list as Exts.-3/2 and 3/4. P.W.15 is the Investigating Officer who also prepared the inquest report (Ext.-6). P.W.3 is the witness to the inquest report (Ext.-6). P.W.9, widow of the deceased and P.W. 11 are the witnesses to the dying declaration of the deceased. P.W.1 and P.W.2 are the hearsay witnesses 6. Learned trial Court, who tried the case, after considering the evidence and materials on record, convicted the present appellant under section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life basing upon the evidence of P.W.5 and P.W.17 under section 27 of the Evidence Act, which has been proved by P.W.13, P.W.14 and Investigating Officer (P.W.15) and postmortem report (Ext.-2), which has been proved by the Medical Officer (P.W.6). 7. Ms. 7. Ms. Ruchi Rampuria, learned counsel for the appellant, assailed the aforesaid judgment on the grounds that P.W.17, who is an independent eye witness to the occurrence, has not supported the case of the prosecution and P.W.5 is a partisan and tutored witness and as such basing upon the evidence of P.W.5 the conviction and sentence awarded against the appellant cannot be sustained. Section 27 of the Evidence Act cannot be applied as recovery has not been proved by P.W. 13 and P.W.14, who have not supported the seizure of knife. No confession was made by the appellant before P.W.13 and P.W.14 and there is no material that the present appellant confessed before the witnesses leading to discovery of knife. Therefore, section 27 of the Evidence Act has got no application. P.W.12 is the brother of the deceased and is the informant of the case, he for the first time stated in his evidence about the occurrence and claims to be an eye witness. Therefore, his evidence should be discarded. P.W.9, P.W.11 and P.W.12 are the witnesses to the dying declaration. They have stated that the deceased made dying declaration before them narrating the name of the present appellant as the author of the occurrence, but Doctor P.W.6 specifically stated that after sustaining injury, the deceased may survive maximum for 2-3 hours and in view of the above statement of the Doctor, it is not possible for the deceased to give statement before P.W.9 (widow of the deceased), P.W. 11 and P.W.12 (brother of the deceased and informant of this case). Most of the witnesses are interested witnesses therefore, their evidences cannot be accepted for conviction and sentence of the appellant. Therefore, it is a fit case for interference by this Court and the judgment and order of conviction and sentence is liable to be set aside by this Court. In alternative, she argued that since repeated assault have not been inflicted on the vital part of the body, therefore, at best the case can be of one under section 304(II) of the Indian Penal Code and the appellant is languishing in jail for more than 13 years, as such, the appeal may be allowed in part after modifying the order of sentence. 8. Mr. Krishna Shankar, learned Addl. Public Prosecutor, vehemently argued the matter. 8. Mr. Krishna Shankar, learned Addl. Public Prosecutor, vehemently argued the matter. He submits that the deceased made dying declaration immediately after the incident before P.W.9 (widow of the deceased), P.W.11 and P.W. 12 (brother of the deceased and informant of this case), implicating the name of the present appellant as the author of the incident. P.W. 5 is the injured witness, who sustained injury while interfering to subside the occurrence and received cut injury on the wrist and the same has been proved by the Medical Officer (P.W.16). P.Ws. 13 and 14 are the witnesses to the seizure list of knife produced by the accused and P.W.15 is the Investigating Officer, who has also proved the seizure list and also the confessional statement of the accused leading to the discovery of weapon used in the offence. Therefore, it is not a fit case to interfere with the judgment of conviction and order of sentence passed by the learned trial Court. 9. After hearing the rival submissions of the learned counsel for the parties, we would like to discuss the evidences of the important witnesses in detailed, which are as under: P.W.5: Ramdhan Sabar:-This witness is the injured eye witness. He deposed that while he was returning from Gobarghusi to Laraidungari along with the deceased and Shankar Majhi, on the way, Sahdeo stopped to urinate and they had moved ahead. Suddenly, Bhuwan Singh came out from the bush and given knife blow to Sahdeo. On hearing voice of Sahdeo (deceased) the present witness came there and caught hold the hand of Bhuwan Singh and he also sustained injury at his hand while Bhuwan Singh (Appellant/accused) was trying to release his hand. In course of cross-examination, he stated that he was about ten feet ahead from the deceased and no one except them, had seen the alleged occurrence. He further stated that he reported to Sripat, Srinath and Gau about the fact that Bhuwan Singh had stabbed Sahdeo. He further stated that after sustaining injuries, Sahdeo had fallen on the ground and apparel of Sahdeo was bloodstained and torned at the place where the deceased sustained knife injuries. He also stated that Sahdeo (deceased) went to his house in injured condition. P.W.-7-Sambhu Sabar:-This witness is the father of the deceased, who himself claimed as eye witness of the case. He also stated that Sahdeo (deceased) went to his house in injured condition. P.W.-7-Sambhu Sabar:-This witness is the father of the deceased, who himself claimed as eye witness of the case. He deposed that his son had gone to Gobarghusi Haat and while he was returning Bhuwan Singh assaulted him with Chhura. In course of cross-examination, he stated that he accompanied deceased while he was returning from Haat. Sahdeo was going a bit forward to him. He further stated that his son Srinath had brought the injured Sahdeo (deceased) to the house. P.W. 8: Kalyani Sabar:-This witness is Bhabhi (sister-in-law) of the deceased, who herself claimed as eye witness of the case. She deposed that she had seen that Bhuwan Singh had given a knife blow on the chest of Sahdeo. In course of cross-examination, she stated that she had witnessed the alleged occurrence of giving assault with knife blow by Bhuwan Singh on the person of Sahdeo (deceased). P.W.9 Smt. Alka Sabar:-This witness is the widow of the deceased. After hearing Hulla that Bhuwan Singh has given knife blow on the person of her husband, she came to the spot where the injured was lying and thereafter deceased was shifted to his house where her husband told her that Bhuwan Singh has given the knife blow. Nothing has been elicited from the deposition of P.W.9 to discard the evidence. P.W.12: Srinath Sabar:-This witness is the informant of the case as well as elder brother of the deceased. He deposed that on hearing Hulla, he came out from the house and went to the place where his brother was lying injured. Sahdeo (deceased) had told that Bhuwan had assaulted him with knife and Ramdhan had also sustained injuries while he was trying to intervene. He proved his signature on fardbeyan which is marked as Ext.-3. He has also identified the signature of Sunil Sabar on the fardbeyan which is marked as Ext.-3/1. In his cross-examination, he had stated that he had not witnessed the alleged occurrence and he has further stated that he with the help of Duryodhan, Upendra Sabar and Suresh Chandra Sabar, brought his brother. He has further stated that when he had talked with deceased at that place, wife of the deceased, Sunil, Sripath and wife of Sripath were present and heard the conversation. He has further stated that when he had talked with deceased at that place, wife of the deceased, Sunil, Sripath and wife of Sripath were present and heard the conversation. P.W. 13 Keshab Singh is the witness to the seizure list, but he has not supported the prosecution case, but he admitted his signature on the seizure list. Similarly, P.W.14 has also accepted his signature on the seizure list but has not supported the case of the prosecution. P.W.15: Satyandar Narayan Singh:-This witness in the Investigating Officer of this case. He deposed that after receiving information about the alleged occurrence he reached at the house of the deceased and recorded the fardbeyan of Srinath Sabar. He proved fradbeyan which is marked as Ext.-4. He further proved his writing and signature on the fardbeyan which is marked as Ext.-4/1. He further proved the formal FIR which is marked as Ext.-5. He also proved the Inquest Report, which is marked as Ext.-6. He further deposed that from the place of occurrence he collected blood stained soil in presence of two independent witnesses namely Budheshwar Tuddu and Duryodhan Sabar and prepared seizure list in his pen and signature which is marked as Ext.-7. He proved requisition for medical examination of P.W 5 (Ramdhan Sabar) which is marked as Ext.-8. He arrested the accused and recorded his confessional statement, which is marked as Ext.-9. He further proved the seizure list of blood stained knife which is marked as Ext.-10. During cross-examination, he stated that he did not find any blood stains at the place of occurrence and the person who identified the place of occurrence are not the eye witness of the occurrence. Two doctors have been examined in this case. P.W.-6 is Dr. Lalan Chaudhary, who had conducted autopsy on the dead body of the deceased, has proved the postmortem report as Ext.-2. He found the following injuries over the dead body:- (i) Stabbed wound 5 cm X 3 cm Chest cavity deep over left side upper most part of chest. (ii) 2 cm X 1.4 cm Chest cavity deep over manubrium region of chest. (iii) 2cm X 1cm X 1.5 cm over left thigh in front. On dissection: Skull-brain surface congested. He found the following injuries over the dead body:- (i) Stabbed wound 5 cm X 3 cm Chest cavity deep over left side upper most part of chest. (ii) 2 cm X 1.4 cm Chest cavity deep over manubrium region of chest. (iii) 2cm X 1cm X 1.5 cm over left thigh in front. On dissection: Skull-brain surface congested. Chest and abdomen: 2 c.m. X 1.5 c.m. Pierced first inter coastal space and left side chest upper part 2 c.m. X 1 c.m. Pierced first inter coastal space at manubrium region surrounding contused. Left lung at apex pierced 2c.m. X 1c.m. X 1 c.m. Chest cavity contains 1.5litre of blood. Stomach contains undigested food like sag, Rice and Pubes 500g.m. Viscera Pale. He opined that all the injures are caused by sharp edged pointed weapon, such as dagger. He further opined that cause of death was due to shock and hemorrhage. Medical witness (P.W.6) in his cross-examination has admitted that the above injuries could not be caused due to fall. P.W.16 is Dr. G.S. Pattar, who has examined the injured eye witness (P.W.5) also proved the injury report (Ext. 11). After scrutiny of all the above evidences nothing has been elicited by the defence to demolish the evidences of these witnesses. 10. After scrutinizing of all the evidences of the witnesses available on record, it is crystal clear that there is no dispute that P.W.5 has seen the occurrence and he had sustained injury on his wrist while he intervened the occurrence and P.W. 5 has also described how he sustained injury. There is no material to disbelieve the evidence of P.W.5 and this witness appears to be a truthful witness. P.W.8 has also supported the evidence of P.W.5 with regard to the assault made upon the deceased by the present appellant. P.W.12 is the brother of the deceased and the informant of this case, who corroborated the evidence of P.W.5 and also stated that how P.W.5 has received cut injuries. Deceased has also made dying declaration before him and also before P.W.9, widow of the deceased, who came to the spot on hearing hulla and also corroborated the evidence of P.W.12 with regard to dying declaration. There is no material to disbelieve the evidence of P.Ws. 5 and 9. Deceased has also made dying declaration before him and also before P.W.9, widow of the deceased, who came to the spot on hearing hulla and also corroborated the evidence of P.W.12 with regard to dying declaration. There is no material to disbelieve the evidence of P.Ws. 5 and 9. Learned trial Court also relied upon section 27 of the Evidence Act with regard to discovery of the weapon used in the offence and its recovery on disclosure by the accused appellant. 11. After scrutinizing the evidence of all the witnesses available on record, it appears that P.W.13 and P.W.17 did not support the prosecution case, but they proved their signatures on the seizure list and accepted their signature to be true. Although they did not support the case of prosecution, but have not stated even a single word in contradiction with regard to the confession made by the accused appellant or with regard to the discovery or seizure of knife. 12. This Court is not inclined to accept the submissions made on behalf of the accused appellant that there was no intention to kill the deceased as no repeated blows have been inflicted by the accused appellant and, as such, conviction under section 302 of the Indian Penal Code may be converted into section 304(II) of the Indian Penal Code, since three successive blows were given upon the vital part of the body of the deceased i.e. on the chest by means of knife and this occurrence had not been taken place due to sudden provocation. 13. In view of the above discussions, this Court is not inclined to interfere with the judgment and order of conviction and sentence dated 01.02.2007 and 02.02.2007 respectively passed by the learned Additional Sessions Judge, Fast Track Court No.-III, Jamshedpur, in S.T. No. 4 of 2004 arising out of Patamda P.S. Case No. 39 of 2003, corresponding to G.R. No. 1237 of 2003, convicting the present appellant under section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. 14. Accordingly, the instant appeal is dismissed. 15. Before parting and dismissing the instant criminal appeal, this Court feels it proper to appreciate Ms. 14. Accordingly, the instant appeal is dismissed. 15. Before parting and dismissing the instant criminal appeal, this Court feels it proper to appreciate Ms. Ruchi Rampuria, learned counsel appearing for the appellant, who has been practising in this Court only for one and half years, who vehemently argued and raised all the points in defence and placed the facts very nicely. She was thorough with the case, which is very appreciable.