JUDGMENT : S. Panda, J. - This Criminal Appeal is directed against the judgment dated 19.01.1999 passed by the learned Addl. Sessions Judge, Rayagada in Sessions Case No. 15 of 1997 in convicting the appellants for commission of offence under Sections 148, 149 and 302 of the Indian Penal Code and sentencing them to undergo R.I. for three years for commission of the offence under section 148 IPC and imprisonment for life for commission of offence under Sections 149/302 IPC and it was also directed that the sentences are to run concurrently. 2. The prosecution case in brief is that on 15.11.1995 at about 5 P.M. the deceased Raghumani Patra had been to village Podalpadar in a bicycle from village Bangi for collection of labourers to cut the paddy from the lands situated at village Podalpadar. At about 6.30 P.M. while he was returning with his bicycle, near Bangi junction on the main road suddenly accused Natabara Guru, Trinath Guru, Gupteswar Behera, Chandeswar Behera, Malikeswar Behera and others being armed with Lathi, Kati, Tangia etc. attacked and assaulted, as a result of which he sustained profuse bleeding injuries on different parts of his body. He fell down at that spot on the ground. In the meantime Chandrapur Bus reached at the said spot and by that time all the accused persons ran away from the said spot. P.W.2-Trinath Naik, P.W.8-Kumurika Nabina and P.W.9-Madangi Rama Murty, who were going in the bus got down from the bus and saw that the deceased sustaining profuse bleeding injuries was lying on the ground. P.W. 2 told P.W.8 to inform the family member about the incident. Accordingly P.W.8 came to the informant Pradeep Kumar Patra, P.W.1, the younger brother of the deceased and informed about the occurrence in question. Immediately P.W.1 rushed to the spot and found that his brother Raghunath Patra was lying on the ground in the pool of blood. He saw cut injuries on both his legs at the level of ankle, on his head, knee joint, fingers of both hands, left thigh etc. Being asked by the informant as to who assaulted him, the injured narrated in detail about the incident and at the time P.Ws. 2 and 9 were also present. He saw cut injuries on both his legs at the level of ankle, on his head, knee joint, fingers of both hands, left thigh etc. Being asked by the informant as to who assaulted him, the injured narrated in detail about the incident and at the time P.Ws. 2 and 9 were also present. While the complainant along with others were present at the spot, the police vehicle came from Gumuda side and on seeing the gathering, the said vehicle stopped and S.I. Utkal Ranjan Das, P.W.15, the then Second Officer of Gunupur Police Station, who was coming in connection with the investigation of an Atrocity case, halted there. P.W. 1 verbally reported to him in detail about the occurrence which he ascertained from P.W.8 and also from his injured brother-Raghumani Patra. The S.I. P.W.15 reduced the same into writing. He immediately shifted the injured to his jeep to take him to Gunupur Hospital for treatment. While the injured was in jeep on the way to hospital, he recorded the declaration made by the injured. The injured succumbed to injury on the way and he was declared as such at the hospital. The declaration made by the injured was marked as Ext.5 and the same was proved as the dying declaration. P.W.15 was entrusted with the investigation by the higher authority. The FIR was marked as Ext.1 and registered as such. P.W.15 held inquest over the dead body at the hospital and sent the same for post mortem examination. P.W.14, the Medical Officer of conducted autopsy over the dead body. On completion of investigation, the I.O. submitted the charge-sheet against the accused persons for commission of offences under Sections 148, 149 and 302 IPC. 3. The appellants' defence plea was one of complete denial. According to them, appellant no.1 is son of one Dalimba through Nilambar, the father of the deceased, being his concubine. Said Nilambar called a Panchayat in the village Bangi and decided that Dalimba and appellant no.1 will take three acres of land for their maintenance. However the deceased snatched away the said land from appellant no.1 for which there were inimical terms between them. Since appellant no.1 and their relations and friends protested such action, they have been falsely foisted in this case. However the deceased snatched away the said land from appellant no.1 for which there were inimical terms between them. Since appellant no.1 and their relations and friends protested such action, they have been falsely foisted in this case. According to them, deceased being assaulted by somebody else and died in the spot and he had no sense when the police reached, therefore, there were no such dying declaration. 4. In order to bring home the charge, during trial the prosecution examined as many as fifteen witnesses including the informant-P.W.1. P.Ws. 2, 8 and 9 are the post occurrence witness among whom, P.W.8 has informed the informant about the incident. P.W.15 is the I.O. and P.W.14 is the Medical Officer, who conducted autopsy over the dead body. Prosecution also exhibited many documents, including Ext. 1 is the FIR, Ext.5 the dying declaration of the deceased, Ext. 22 is the Post Mortem Report. On the other hand, the defence had examined four witnesses, but did not exhibited any document. The prosecution also proved 18 Material Objects including weapons of offence. 5. The learned Addl. Sessions Judge after threadbare discussion of the materials available on record came to a conclusion that the prosecution has substantially brought home the charges against the accused persons beyond all reasonable shadow of doubt. The Trial Court relied on the evidence of P.Ws. 1, 2, 4, 5 and 9, so also the FIR under Ext.1 which corroborate the evidence of P.Ws. 1, 2 and 9 in whose presence the dying declaration was made by the deceased. Accordingly, the Trial Court convicted all the accused persons for commission of the offence punishable under section 148, 149/302 IPC and imposed the sentence as indicated above. 6. Learned counsel for the appellants submits that the impugned judgment of conviction and sentence is against the law and weight of evidence on record. According to him the evidence of the witnesses P.Ws. 4 and 5 being contradictory to each other, their statements should not have been accepted treating them as the eye witness to the occurrence. His further stand was that the Doctor, who conducted the autopsy opined that the death might be instantaneous taking hemorrhage, shock and neurogenic shock, the patient must have unconscious within five minutes and the death may be possible within ten minutes. His further stand was that the Doctor, who conducted the autopsy opined that the death might be instantaneous taking hemorrhage, shock and neurogenic shock, the patient must have unconscious within five minutes and the death may be possible within ten minutes. But the story of the prosecution that the informant came to the spot after being informed by the P.W.8 and thereafter Police staff reached and recorded the statement is not believable and the Court below should not have relied on such statement as dying declaration. Therefore, the impugned order of conviction and sentence is illegal and liable to be set aside and the appellant is entitled for acquittal. 7. Learned Additional Standing Counsel strongly contended that the evidence of P.W.2, 8 and 9 who got down from the bus at the time of occurrence is specific and corroborative with each other. That apart, the deceased has narrated the detail incident in presence of P.W.1, 2 and 9. He had also made the dying declaration before the I.O., who incidentally reached the spot while he was coming in connection with another case. Since the accused persons have animosity with the deceased, they had come with a motive to kill the deceased being armed with deadly weapons. P. Ws. 4 and 5 are the eye witness to the occurrence. The evidence of P. Ws. 4 and 5 corroborates the dying declaration given by the deceased as well as the evidence of P. Ws. 1, 2 and 9 before whom the deceased has narrated the incident. The evidence of P.W.14, the Doctor who conducted autopsy over the dead body and as well as the evidence of P.W.15, before whom the deceased has made the dying declaration are enough for the Trial Court to hold the accused persons to have committed the crime. Therefore, the sentence imposed on the appellants has been properly assessed by the Trial Court and as such, the same calls for no interference by this Court. Learned counsel appearing for the informant supported the prosecution case and submitted that since the evidence of P.Ws. 1, 2 and 9 are specific and corroborates with each other so also with the FIR, therefore, the Court below has rightly convicted the accused persons. Therefore, the interference with the judgment and sentence is not warranted. 8. Perused the L.C.R. and went through the evidence on record carefully. 1, 2 and 9 are specific and corroborates with each other so also with the FIR, therefore, the Court below has rightly convicted the accused persons. Therefore, the interference with the judgment and sentence is not warranted. 8. Perused the L.C.R. and went through the evidence on record carefully. The prosecution basically founded its case on the evidence of the eye witnesses P.W.4 and 5, the evidence of P.Ws. 1, 2 and 9 before whom the deceased narrated the incident and also the dying declaration of the deceased made before P.W.15, the I.O. of the case. The prosecution has also relied on the evidence of the Doctor who conducted post mortem examination over the dead body. 9. P.W.1, the informant and the brother of the deceased, in his examination-in-chief has stated that they had no coordinal relationship with the accused persons due to some landed property. On earlier occasion, i.e. on 01.09.1994 and 07.04.1994 the accused had attempted to cut and remove their paddy, for which they had lodged FIR. Due to such animosity they had left the village Bangi and settled at Gumuda village. On the day of occurrence, his brother had been to village Podalpadar by a bicycle for the purpose of arranging labourers to cut the paddy. While he was in the house, P.W.8 came and told him that his brother has been murdered and lying on the road being cut into pieces. He went immediately by riding the bicycle to the spot, which is 1 km from his house. On reaching there, he found that his brother was lying in a pool of blood with multiple cut injuries on his body. He found cutting of veins to both the legs below the knee joint and injuries on the thigh, the right wrist was also cut and the fingers have already cut. His brother was in life and started to cry looking at him. He enquired about the incident and accordingly his brother told that the accused persons, Natabar Guru, Trinath Guru, Chandreswar Behera, Malikeswar Behera, Gupteswar Behera suddenly came from the bushes and dealt Kati and axe blows and also assaulted with lathi. When Chadrapur Bus came, they fled away from the spot. There were also other associates, whom he could not identify. While his brother was narrating the incident, P.W.2 and 9 were all along present at the spot. When Chadrapur Bus came, they fled away from the spot. There were also other associates, whom he could not identify. While his brother was narrating the incident, P.W.2 and 9 were all along present at the spot. In the meantime, the Police Vehicle was coming from Gumuda side and it stopped there observing such gathering. The informant narrated the incident and thereafter police enquired from his injured brother, who was in life then and he has described in detail while in the police vehicle to Gunupur Hospital. He could not sign the statement due to cutting of all his fingers. In the Hospital, the Doctor declared him dead. In his cross examination he denied to have snatched certain property from the accused or have filed false cases against the accused persons. He had stated that due to non-allotting their land for Bhag cultivation to them, enmity developed. The accused persons have attempted to cultivate their land forcible, for which he had filed F.I.R. against them. The statements made in the FIR corroborates the evidence of P.W.1. However in his evidence, the P.W.1 has neither named appellant no.1 nor stated about the overt act performed by him. 10. P.W.2, in the examination-in-chief had deposed that he got down from Chadrapur Bus at 6.45 P.M. at a little distance from Bangi Junction. He found the deceased in a bleeding condition. Being asked he told that some persons assaulted him with deadly weapon. P.W.8 was present there being got down from the bus along with P.W.2. The deceased told him to give this information at his house. P.W.2 picked up the cycle and gave to P.W.8 to go to the house of the injured. P.W.8 went to the house of the injured and immediately the informant, P.W.1 reached there. P.W.1 asked his brother and enquired about the incident in presence of P.W.2. He told that while he was coming from Padalpadar, some persons caused the injuries by means of Kati, Lathi and axe and he could able to identify the assailants like Gupteswar Behera, Malikeswar Behera, Chandrawar Behera, Trinath Guru and Natabar Guru. Thereafter A.S.I. of Police while returning from Gumunda stopped there observing the gathering and asked P.W.1, who narrated the incident. The Police when asked the injured about the incident, the injured also narrated the same thing to the Police inside the Jeep while he was taken to the hospital. Thereafter A.S.I. of Police while returning from Gumunda stopped there observing the gathering and asked P.W.1, who narrated the incident. The Police when asked the injured about the incident, the injured also narrated the same thing to the Police inside the Jeep while he was taken to the hospital. P.W.2 was also accompanying with the deceased in the vehicle to the hospital. In his cross-examination, he denied that the deceased was dead when he got down from the bus. However, he had also not named the appellant no.1 in the incident. 11. P.W.4 and 5 in their depositions have stated that while they were traveling in Tiptop Maa Janaki bus they saw some persons holding Kati, Lathi and axe assaulting the deceased in an open place near Bangi junction. They saw the assault through the bus. Admittedly they have been examined eight days after the occurrence. The prosecution has not properly explained the examination of those witnesses at a belated stage. Thus, their evidence cannot be relied on. 12. P.W.15, the I.O. had deposed that while he was proceeding from Gumuda side towards Bamanaguda in the police jeep in connection with the investigation of an atrocity case, he found the injured lying on the side of the road. P.W.1 was available in the spot, who verbally reported to him, which he reduced into writing. The deceased was in sense and he was capable of giving answers to him at that time. He recorded his statement under Ext.5, since he apprehended his death shortly. The deceased could not put his signature or thumb impression as severe pain and injuries on his fingers. He shifted him to Gunupur hospital in the police vehicle. Inside the police vehicle, he had regained sense and answered to the questions put by P.W.15. He was declared dead in the hospital. He searched the house of the accused persons and recovered the weapon of offences. Appellant No.1 arrived at the police station and made certain disclosure statement. He led the I.O. to his house and gave discovery of the hidden article, Khanati and blood stained Lungi. He had examined P.W.9, who had stated before him that P.W.1 inquired from his brother about the occurrence in his presence and he had named the accused persons to have assaulted the deceased. He led the I.O. to his house and gave discovery of the hidden article, Khanati and blood stained Lungi. He had examined P.W.9, who had stated before him that P.W.1 inquired from his brother about the occurrence in his presence and he had named the accused persons to have assaulted the deceased. In his cross examination he denied the fact that the deceased was dead at the time he reached the spot. He denied the dying declaration to be false. 13. P.W. 14, who conducted the autopsy over the dead body found the following injuries. 1. Average build elderly male, left eye was closed, right eye was opened, mouth is half opened, features of rigor mories were present. 2. cut injury of size 2 " x bone depth over posterior aspect of lower end of left leg at the level of the ankle. The injury was cut through the Tendo Achilis and tibial arteries. 3. Cut injury of size 3 " x 2 " and bone depth over posterior aspect lower end of right leg at the level of ankle. The injury has cut through the Tendo achilis and tibial arteries. 4. Incised wound over distal interphalangeal crease of the right middle finger of size of 1" x ?" x bone depth causing fracture of the middle phalnx of right middle finger. 5. Contusion over the dorsal aspect of right hand of size 4" x 3" x ?" 6. Contusion over the dorsal aspect of right fore arm of size 6" x 3" x ?". 7. One parallel bruise of size 5" x 1?" x ?" over right knee with abraded surface. 8. One incised wound over the left parietal region of scalp of size 3" x " x bone depth. 9. One incised would of size 1?" x ?" x bone depth over anterior aspect of right leg 3" below the knee joint. 10. One incised would of size 1" x ?" x ?" over anterior aspect of right leg just below the ankle joint. 11. One incised would of size 1" x ?" x ?" over right ring finger. 12. One incised would of size 1" x 1?" x ?" over the left middle finger. 13. One incised would of size 1" x ?" x ?" over the middle interphalangeal crease of the left right finger. 14. 11. One incised would of size 1" x ?" x ?" over right ring finger. 12. One incised would of size 1" x 1?" x ?" over the left middle finger. 13. One incised would of size 1" x ?" x ?" over the middle interphalangeal crease of the left right finger. 14. One incised would of 1" x ?" x ?" over anterior aspect of left thigh. P.W.14 has opined that all the injuries are ante-mortem in nature and the injuries could have been possible with sharp cutting weapons. He opined that the death is homicidal in nature and the injury nos.1 and 2 were sufficient in ordinary course of nature to cause death and cumulative effect of all the injuries were sufficient to cause death. 15. In the case of Satish Ambanna Bansode v. State of Maharashtra reported in (2009) 11 SCC 217 , the Apex Court has reiterated the principles governing the dying declaration at paragraph-14 of the judgment as follows:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See: Munnu Raja v. State of M.P. (1976) 3 SCC 104 ]. (ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See: State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 , and Ramawati Devi v. State of Bihar (1983) 1 SCC 211 ]. (iii) The court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See: K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618 ]. (iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See: Rasheed Beg v. State of M.P., (1974) 4 SCC 264 .] (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P., (1981) Supp. SCC 25.] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Rasheed Beg v. State of M.P., (1974) 4 SCC 264 .] (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [See: Kake Singh v. State of M.P., (1981) Supp. SCC 25.] (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See: Ram Manorath v. State of U.P., (1981) 2 SCC 654 .] (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v. Krishnamurti Laxmipati Naidu, (1980) Supp. SCC 455.] (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See: Surajdeo Ojha v. State of Bihar, (1980) Supp. SCC 769] (ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See: Nanhau Ram v. State of M.P., (1988) Supp. SCC 152.] (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See: State of U.P. v. Madan Mohan (1989) 3 SCC 390 .] (xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. [See: Mohanlal Gangaram Gehani v. State of Maharashtra, (1982) 1 SCC 700 .]" 16. The principle enumerated in the famous legal maxim of the Law of Evidence, i.e. nemo moriturus praesumitur mentire which means a man will not meet his Maker with a lie in this mouth. Our Indian Law also recognizes this fact that "a dying man seldom lies" or in other words "truth sits upon the lips of a dying man" In the instant case, there is only one dying declaration under Ext.5, which has been recorded just few moments before his death while he was shifted to the hospital. Such dying declaration also corroborates the evidence of P.W.1 and 2. 17. Such dying declaration also corroborates the evidence of P.W.1 and 2. 17. On close scrutiny of the evidences on record and as discussed in above paragraphs, we are of the opinion that there is no material against appellant no.1-Rama Rao Patika @ Patro. P.Ws. 1, 2 and 9, the so called witnesses in whose presence the deceased had made dying declaration have neither uttered the name of appellant No.1 nor stated the overt act committed by him. Thus, he is acquitted from the charges. So far as the appellants 2 and 3 are concerned, this Court is of the opinion that the Court below has rightly held that they are the authors of crime and accordingly we are not inclined to interfere with the impugned judgment of conviction and sentence imposed on them. Since appellants 4, 5 and 6 have already expired during pendency of the Criminal Appeal, the Criminal Appeal stands abated as against those appellants. 18. In view of the above, the Criminal Appeal is partly allowed so far as Appellant No.1- Rama Rao Patika @ Patro is concerned and he be set at liberty forthwith. The Criminal Appeal is dismissed so far as Appellant No.2- Gupteswar Behera and Appellant No.3-Chandeswar Behera is concerned. 19. The appellants 2 and 3 were released on bail pursuant to the order of this Court dated 01.09.2006. In view of the dismissal of the appeal so far as Appellant No.2-Gupteswar Behera and Appellant No.3-Chandeswar Behera is concerned, their bail bonds so furnished be cancelled and they be taken into custody forthwith. Final Result : Partly Allowed