JUDGMENT : A. K. MISHRA, J. 1. The conviction of accused under section 304(P-II) IPC and sentencing him to seven years R.I. in judgment dated 22.06.1991 in S.T. Case No.54 of 1991 passed by learned Sessions Judge, Puri is challenged in this appeal. 2. Accusation leading to the prosecution was that on 13.08.1990 at about 5:00 P.M. accused came to the house of deceased and demanded repayment of loan of Rs.1500/- taken of deceased. The deceased was then in the house of his sister Jhula @ Jhuna Behera few houses apart from her parent. Deceased Nabaghana could not make repayment then. The accused took him in his bicycle. After two hours the accused brought the deceased in a rickshaw. By then deceased was vomiting, he left him on verandah and slipped away. The family members administered water. The deceased disclosed that the accused gave kick and blows to his abdomen at a place between Ekchalia Patna and Cherinala. Then he become unconscious. He was taken to the District Headquarters Hospital, Puri where he was declared dead. At hospital the brother of deceased namely Kishore Dash, P.W. 1 lodged oral report which was reduced into writing and treated as an FIR. Vide Puri Sadar P.S. Case No.103 of 1990 under section 302 IPC. On next day inquest was made, so also postmortem. The cause of death was due to shock and profuse hemorrhage resulting from injuries to the abdomen and rupture of the spleen. After completion of investigation charge sheet was submitted. The case was committed to the court of sessions and trial commenced. The plea of defence was denial. The prosecution examined 11 witnesses. P.W.1, informant, is the brother of the deceased. His sister and father are P.Ws. 2 and 3. P.W. 4 is a post occurrence witness who has signed in the FIR exhibt-2. P.W. 5 is a witness to the inquest, P.W. 6 a constable is a witness to the inquest and seizure of wearing apparels of the deceased. P.W.9 is the brother-in-law of deceased who stated about extra judicial confession of the accused but it was disbelieved. P.W.7 is the rickshaw puller whereas P.W.8 is the adjacent neighbor. Both of them are declared hostile. P.W.10 is the Doctor who conducted the autopsy. The Investigating Officer is P.W.11. Accused had surrendered on 17.08.1990. No witness was examined on behalf of the defence. P.W.7 is the rickshaw puller whereas P.W.8 is the adjacent neighbor. Both of them are declared hostile. P.W.10 is the Doctor who conducted the autopsy. The Investigating Officer is P.W.11. Accused had surrendered on 17.08.1990. No witness was examined on behalf of the defence. Learned Trial Court found that the death was homicidal in nature and it was due to anti-mortem injuries caused to spleen, urinary bladder and laceration of peritoneum and intestines. For that learned Trial Court relied upon the Doctor evidence of P.W.10 and postmortem report Exhibit-5. 2(a). In absence of eye witnesses to the actual incident, the Trial Court took the following circumstances into consideration to record a finding of guilty of the accused. These are:- (i) Deceased was taken by accused on his cycle about two hours before his death (ii) After two hours the accused brought the deceased in a rickshaw in a critical condition and clandestinely left while deceased was vomiting (iii) The deceased made oral dying declaration implicating the accused before his family members (iv) Non-payment of loan amount was the motive. The learned Trial Court found that besides last seen theory, the above circumstances were proved beyond reasonable doubt and were sufficient to complete the chain indicating the guilty of the accused. At the same breath, the learned Trial Court also discarded the theory of extra judicial confession advanced by P.W.9. It is also found by the learned Sessions Judge that accused had no intention to cause such bodily injury, for which offence under Section 302 IPC was not made out. But as accused had assaulted the deceased with the knowledge that it was likely to cause death, he was held guilty under Section 304(P-II) IPC and was sentenced as stated above. 3. Mrs. K. Ray Choudhury learned Amicus Curiae on behalf of the appellant made the following submissions. In a case relying upon circumstantial evidence, the non-examination of Surendra Jena in whose Tea Stall verandah the deceased was found lying and from where he was brought by accused in a rickshaw to his house must be viewed adversely because the rickshaw puller P.W. 7, does not support the prosecution. Further the making of oral dying declaration by deceased is doubtful as he was unconscious then. Further the making of oral dying declaration by deceased is doubtful as he was unconscious then. It is argued that once the above two links are disconnected, the chain of circumstances can not be held completed and for that the accused is to be given benefit of doubt. 4. Learned Additional Government Advocate, Mrs. S. Pattnaik, supported the conviction and sentence stating that minor discrepancies and inconsistencies should not be considered to throw away the legally admissible evidence and in a case of this nature, the related witnesses were expected only to see that the real culprit did not escape. She further submitted that tea stall owner was not an eye witness to any incident and when the defence had not advanced any acceptable and probable plea as to actual incident, his non-examination cannot be said material to any proved circumstances. She contended that the appreciation of evidence of the trial court could not be said perverse because even after disbelieving the factor of extra judicial, the accused was held guilty on the other evidences pointing that the accused was the author of anti-mortem injuries resulting the death of the deceased within two hours. She further submitted that the oral dying declaration was reliable, truthful and natural. 5. Carefully perused the evidence on record in the backdrop of the above rival contentions. There is nothing to disbelieve the testimonies of brother, sister and father of the deceased. Their testimonies are truth revealing. Sister, P.W. 2 stated that accused came to her house, demanded loan from Nabaghana and took him in his bicycle towards his house Kumbharpada and after two hours accused brought the Nabaghana back in a rickshaw and lifted and laid him on the verandah. Nabaghana informed them that accused had assaulted on him on his abdomen with kicks and blows. She was categorical to state that when they searched the accused, he was found to have left the place. She has stated that her rented house is at a distance of twenty cubits from the parental house. P.W. 1, the brother of deceased and P.W.3, father of deceased corroborated the same. Rickshaw Puller, P.W.7 has testified that on the way at Charinal he found Nabaghana sitting on the verandah of a house and on his asking he brought him to his house. P.W. 1, the brother of deceased and P.W.3, father of deceased corroborated the same. Rickshaw Puller, P.W.7 has testified that on the way at Charinal he found Nabaghana sitting on the verandah of a house and on his asking he brought him to his house. The defence banked upon this to contend that accused had never accompanied the deceased to his house in the rickshaw. P.W. 7 is declared hostile. The evidence of brother, father and sister that accused had brought the deceased in the rickshaw of P.W.7 cannot be disbelieved. Learned Trial Court has rightly accepted the same because accused had taken the deceased two hours earlier when deceased could not make repayment of loan. Added to that the deceased had disclosed that accused had assaulted him giving kicks and blows to his abdomen. The deceased was conscious then. The Doctor has stated that after sustaining such injuries the patient could not be said to have become unconscious. The evidence of Doctor reveals that if there was no vagal inhabitation there would not be any immediate shock and it could not be said that soon after assault the deceased became unconscious. The deceased was brought in a critical condition and in a natural way he disclosed before the family members that accused had caused injury in his abdomen and after two hours he died. 5(a). In a decision Prakash and another Vs. State of Madhya Pradesh,1993 AIR SC 55 it is held that:- "In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the ordinary course, the members of the family including the father were expected to ask the victim the names of assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants." 6. By cogent, clear and credible evidence, the prosecution has proved the last seen theory beyond reasonable doubt, so also oral dying declaration implicating the accused. 7. Only because some witnesses are declared hostile or do not support the prosecution, the evidence of other witnesses cannot be discarded. The brother, father and sister though related cannot be said to have deposed falsely against the accused leaving the real culprit. There is nothing on record to show prior hostility between the accused and these witnesses. Their evidence is cogent, consistent and wholly reliable. Thus all the circumstances relied upon by the Trial Court, on independent analysis, are found to have been proved and once they are linked, the chain pointing the guilty of the accused is also found to have been proved beyond reasonable doubt. 8. In this nature of case minor discrepancies are natural to occur. So also natural is the oral dying declaration of deceased before family members. The Trial Court has rightly appreciated the evidence in proper perspective. The offence under section 304(P-II) IPC is proved by the prosecution beyond reasonable doubt. There is no reason to interfere with the same. The sentence is proportionate to the offence proved. 9. In the result, the conviction of Accused Sankar Samartha under Section 304(Part-II) and the sentence passed by the trial court are upheld. The appeal stands dismissed.