JUDGMENT : Shree Chandrashekhar J. 1. Bero P.S Case No.42 of 2008 was registered on 11.07.2008 against Jaga Oraon, the appellant, under section 307 of the Indian Penal Code for attempt to murder Paya Oraon. The informant is the wife of Paya Oraon who succumbed to the injuries on 25.07.2008 and, accordingly, the offence under section 302 of the Indian Penal Code was added in the report vide order dated 01.08.2008. In her fardbeyan which was recorded at 11:00 p.m. on 10.07.2008 at Primary Health Centre, Bero, the informant has alleged that in the evening of 10.07.2008 she was with her husband at home - her husband was drunk. At about 07:00 p.m., Jaga Oraon who is her elder brother-in-law came there and took away her husband on the pretext of enjoying drink. At about 08:00 PM, when she heard screams of her husband she came out and saw that Jaga Oraon carrying a Nepala was running towards his house and behind him her husband drenched in blood and pressing his abdomen came there. He told her that Jaga Oraon has assaulted him and fled away. She has seen two knife blows over abdomen and one injury on the head of her husband and his intestine was bulging out. With the help of Mangra Oraon, Etwa Oraon and Brijmani Kujur she brought her husband to Bero Hospital where her fardbeyan was recorded by Garib Mochi, S.I of Bero Police Station. The informant has alleged that the elder brother of her husband assaulted him with an intention to murder due to a land dispute between them. After the investigation a charge-sheet was submitted against the appellant and he has faced the trial on the charge under section 302 of the Indian Penal Code. During the trial the informant was examined as PW3. The neighbours of the informant, namely, Brijmani Kujur-PW4, Birsa Oraon-PW5, Etwa Oraon-PW6, Mangra Oraon-PW7 and Damu Oraon-PW8 were examined by the prosecution, however in the Court, PW6, PW7 and PW8 have turned hostile. Dr. Lal Manjhi who has first attended Paya Oraon at Primary Health Centre, Bero observed two incised wounds around his abdominal area, the intestine was coming out of the abdomen. Dr. C.S. Prasad who conducted the post-mortem examination over the dead body of Paya Oraon on 25.07.2008 at about 12:45 hrs has found signs of repair at two places over the small intestine. Dr. C.S. Prasad who conducted the post-mortem examination over the dead body of Paya Oraon on 25.07.2008 at about 12:45 hrs has found signs of repair at two places over the small intestine. He has seen perforation in the small intestine, presence of pus and peritonitis in the intestine. 2. The learned Additional Judicial Commissioner, Fast Track Court-VI, Ranchi has held that the prosecution has proved the sequence of events in the night of 10.07.2008 the occurrence took place around 08:00 p.m. in the night, and Paya Oraon was found injured with a knife like weapon. The learned Judge has further found that the victim himself has stated before his wife and the investigating officer that Jaga Oraon assaulted him and the doctor who treated him first has categorically held that injury found on his person was sufficient to cause death in the ordinary course of nature and, therefore, the accused was liable to be convicted under section 302 of the Indian Penal Code. 3. The learned trial Judge has held thus; “Thus, in view of this court there cannot be two views with regard to the intention of the accused while inflicting such injury on the victim that he intended to kill the victim and therefore all the ingredients of culpable homicide amounting of murder are made out. The nature of the wounds, manner of the occurrence, place of occurrence, the mode of occurrence, backdrops of inimical relationship with regard to land dispute, conduct of the accused by moving away to his house upon seeing his brother in pool of blood, recovery of knife used in the occurrence on the basis of his discloser statement all taken together in totality give rise of only inference that the accused Jaga Oraon had assaulted the victim Paya Oraon with an intention to kill him and only because of immediate medical aid extend to him the victim could be saved for few days, finally he died a fortnight after the occurrence. It hardly makes any difference that the exact reason for death of the victim is something else as told by the doctor who conducted post-mortem examination on the dead body of the deceased. In fact the accused has left has no stone unturned, to kill victim at the place of occurrence itself and therefore the ingredients of offence of murder as against the accused facing trial are made out. In fact the accused has left has no stone unturned, to kill victim at the place of occurrence itself and therefore the ingredients of offence of murder as against the accused facing trial are made out. In result, this court is of the considered view that prosecution has been able to bring home the charge against sole accused facing trial. Accordingly, accused Jaga Oraon is found and held guilty u/s 302 I.P.C" 4. In Session Trial Case No. 134 of 2009, the appellant has been convicted and sentenced to R.I. for life and a fine of Rs.10,000/- under section 302 of the Indian Penal Code with default stipulation to undergo further imprisonment for one year. 5. Ms. Shilpi Sandil, the learned Amicus has contended that given the serious condition of Paya Oraon the evidence of his wife that he has named the appellant as his assaulter is doubtful. The learned Amicus has highlighted several other aspects and lacunae in the case of the prosecution to press hard upon us not to believe testimony of the informant. 6. An accused can be convicted solely on the basis of a dying declaration and it is quite a settled position in law that it is not necessary to seek corroboration of a dying declaration by independent evidence. In Kundula Bala Subrahmanyam and Another v. State of Andhra Pradesh, (1993) 2 SCC 684 the Hon'ble Supreme Court has observed that a statement made by a person on the verge of his death must be accorded a special sanctity, as at that solemn moment the person is most unlikely to make any untrue statement. The judgment in Mallella Shyamsunder v. State of Andhra Pradesh" (2014) 4 JBCJ 444 (SC) on which Mr. Vineet Kumar Vashistha, the learned APP has placed heavy reliance proceeds on the similar lines. 7. Kundula Bala was followed in Laxman v. State of Maharashtra (2002) 6 SCC 710 wherein the Hon'ble Supreme Court has observed as under: "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The juristic theory regarding acceptability of a dying declaration is that such declaration is made extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable….." 8. The informant is specific and there is no inconsistency in her evidence on the point that her husband has disclosed name of Jaga Oraon who inflicted knife blows upon him. Ms. The informant is specific and there is no inconsistency in her evidence on the point that her husband has disclosed name of Jaga Oraon who inflicted knife blows upon him. Ms. Shilpi Sandil, the learned Amicus would submit that in the fardbeyan the informant has stated that on hearing cries of her husband when she came out from her house she found the appellant running towards his house and her husband came behind him whereas in the Court she has deposed that her husband came running home pressing his abdomen and yelling that Jaga (Oraon) and Dago (Oraon) have assaulted him with knife but Dago Oraon has not been sent up for trial. This discrepancy in her evidence though not been explained by the prosecution, in our opinion, on that ground testimony of the informant cannot be disbelieved, - this primarily is an improvement by the informant in the Court. : Paya Oraon has given his statement before the investigating officer in which he has disclosed complicity of his brother, the appellant. This was a mistake on the part of the investigating officer that the statement of Paya Oraon was not reduced in writing in presence of a Magistrate. However, the attending circumstances in the case, particularly, the death happening 14 days after Paya Oraon suffered knife blows indicate that he was in a condition to speak and there is no reason why the Court should not believe the informant who apparently had no reason to falsely implicate her own elder brother-in-law in the case and shield the real culprit. There is no suggestion by the defence in her cross-examination that her husband had any animosity with other persons and he was done to death by his enemies. With the help of judgment in Raja Gaunder v. State of Tamil Nadu (2010) 15 SCC 98 , Mr. Vineet Kumar Vashistha, the learned APP has submitted that the widow of deceased would be the last person to involve any other person leaving out the real assailants. In our view, there is intrinsic truthfulness in the testimony of the informant and minor inconsistencies in her evidence which are quite natural in the context of the lady being an illiterate rural women (paragraph no.20 of her testimony) would not affect the worth of her evidence. 9. In our view, there is intrinsic truthfulness in the testimony of the informant and minor inconsistencies in her evidence which are quite natural in the context of the lady being an illiterate rural women (paragraph no.20 of her testimony) would not affect the worth of her evidence. 9. The dying declaration of Paya Oraon is admissible in evidence under section 32(1) of the Evidence Act which provides that statement of a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes into question is a relevant fact. Sub-section 1 to section 32 further clarifies that at the time when a person has made such relevant statement it is immaterial whether he was under expectation, of death or not. The dying declaration of Paya Oraon is a highly incriminating material against the appellant and though in our opinion this by itself is sufficient to accord our concurrence with the judgment or conviction or the appellant in Session Trial Case No. 134 of 2009, by way of precaution and following the rule of caution, we would now see whether there is any independent corroboration to the evidence of PW3, the informant. 10. The case of the prosecution is that on the informant raising cries her neighbours came there and with their help Paya Oraon was taken to the Primary Health Centre at Bero. PW4, Brijmani Kujur has stated in the Court that at around 08:00 PM in the night of 10.07.2008 PW3 came to her house for help. She told her that Jaga Oraan had stabbed her husband, whereupon she had gone with her to her house and found Paya Oraon lying in a pool of blood and his intestine was visible through the wounds. She has further stated that Paya Oraon was taken to Bero Hospital in the vehicle of Tinku and at that time PW3, PW6 and PW7 were also accompanying Paya Oraon. In the hospital, he was administered first Aid and thereafter referred to RIMS for treatment. PW5, Birsa Oraon has described the backgrounds of the case. He has stated that Dago Oraon, Jaga Oraon and Paya Oraon came to his house at about 07:30 p.m. and at that time they were drunk. In the hospital, he was administered first Aid and thereafter referred to RIMS for treatment. PW5, Birsa Oraon has described the backgrounds of the case. He has stated that Dago Oraon, Jaga Oraon and Paya Oraon came to his house at about 07:30 p.m. and at that time they were drunk. PW6, PW7 and PW8 who had made statements before the investigating officer Supporting the prosecution were declared hostile in the Court. The statement of a hostile witness is not altogether worthless and a part of the examination-in-chief and cross-examination of a hostile witness can be relied upon by the prosecution to the extent it supports its case. In Syad Akbar v. State of Karnataka (1980) 1 SCC 30 the Hon'ble Supreme Court has observed that evidence of a hostile witness cannot be rejected wholesale merely on the ground that the prosecution has dubbed him hostile and cross-examined him. In the cross-examination by the defence, PW6, PW7 and PW8 have made statements favourable to the appellant however such evidence which has remained untested would be in the realm of hearsay and not admissible. PW6 has stated in his examination-in-chief that the wife of Paya Oraon had informed him about the occurrence at about 08:00 p.m. in the night and asked him to take her husband to hospital. He has further stated that Paya Oraon on whose abdomen he has seen injuries was taken to the hospital. He has further stated that at that time Paya Oraon was alive and he was talking. PW7 has also stated that at about 08:00 p.m. in the night the wife of Paya Oraon came to his house and told him that her husband got injured in a quarrel. He has further stated that when Paya Oraon was taken to the hospital at that time PW3, PW6 and one woman were accompanying him. PW8 has stated that Paya Oraon and Jaga Oraon came to the house of Birsa Oraon in the evening and after they palied accompany Paya Oraan and Jaga Oraon started marpit in which Paya Oraon has suffered injuries. The aforesaid evidence of PW6, PW7 and PW8 has considerable corroborative value and is admissible under section 157 of the Evidence Act. Further more, since PW3 has stated that she informed PW6 and PW7 that Jaga Oraon has assaulted her husband the evidence of PW6 and PW7 is admissible as part of res gestae. The aforesaid evidence of PW6, PW7 and PW8 has considerable corroborative value and is admissible under section 157 of the Evidence Act. Further more, since PW3 has stated that she informed PW6 and PW7 that Jaga Oraon has assaulted her husband the evidence of PW6 and PW7 is admissible as part of res gestae. There was no time gap between the occurrence and the information about the appellant given by PW3 to these witnesses that he assaulted her husband and there was a certain kind of spontaneity and live link between the two events. Therefore, PW6 and PW7 have corroborated PW3 on Paya Oraon making a dying declaration before his wife. 11. Another piece of evidence pressed by the prosecution is confessional statement of the appellant and recovery of a dagger at his instance. PW1 and PW2 who are the seizure witnesses have stated in the Court that dagger was not recovered in their presence and they have signed the seizure memo at the instance of the investigating officer. Mr. Vineet Kumar Vashistha, the learned APP has contended that the statement of PW 1 and PW2 to the effcct that no recovery was effected in their presence is not sufficient to doubt recovery of the crime weapon at the disclosure of the appellant. For a moment, we would proceed on the premise that there is no independent evidence on recovery o[ the crime weapon, still, evidence of the investigating officer whose act was contemporaneous with the recovery of crime weapon can be taken into consideration by the Court. In his confessional statement the appellant has stated that he had concealed the crime weapon beneath the ground in his house and he can get Nepala recovered. Section 27 of the evidence Act provides that when any fact is deposed to as discovered in consequence of any information received from a person accused of a crime who is in custody of a police officer may be proved, provided such information relates distinctly to the fact thereby discovered. The knowledge of the appellant about the place where he had concealed the crime article and his disclosure to the investigating officer about such place would be covered under section 27, for his information has 'led to discovery of a new fact by the investigating officer, that is, the place where the crime article was concealed. The knowledge of the appellant about the place where he had concealed the crime article and his disclosure to the investigating officer about such place would be covered under section 27, for his information has 'led to discovery of a new fact by the investigating officer, that is, the place where the crime article was concealed. Though we are prima-facie satisfied that the evidences led by the prosecution in the form of confessional statement of the appellant and recovery of the crime weapon at his instance are admissible in evidence, what is significant to note is that there is sufficient evidence besides the confessional statement and recovery of the crime weapon to establish assault by the appellant upon his brother. 12. Mr. Vineet Kumar Vashistha, the learned APP has contended that the nature of injury and opinion of PW9 that the injury was sufficient in the ordinary course to cause death and the other circumstances in the case such as the appellant taking his brother away on the pretext of enjoying drink and inflicting injuries on his abdomen are sufficient to hold that act of the appellant would fall squarely under clause Thirdly of section 300 of the Indian Penal Code. On the other hand, Ms. Shilpi Sandil, the learned Amicus has relied upon the judgments in (i) Kulwant Rai v. State of Punjab (1981) 4 SCC 245 , (ii) Gurmail Singh and Others v. State of Punjab (1982) 3 SCC 185 , (iii) State of UP v. Indrajeet @ Sukhatha (2000) 7 SCC 249 , (iv) Harish Kumar v. State (Delhi Admn.) 1994 Supp (1) 462, (v) Surinder Kumar v. Union Territory, chandigarh (1989) 2 SCC 217 and (vi) Selvam v. State of Tamil Nadu Represented by Inspector of Police (2012) 10 SCC 402 , to submit that intention or knowledge as envisaged under section 300 of the Indian Penal Code cannot be inferred from the materials laid during the trial and moreover the death has occurred 14 days after Paya Oraon suffered stab injury which by itself is sufficient to hold that the appellant cannot be convicted for murder. 13. There is no eyewitness who has seen assault upon Paya Oraon. He was drunk, invited and taken away by the appellant for more drinks. The appellant was carrying a weapon is not the prosecution evidence. PW8 who accompanied them has turned hostile and did not support the prosecution. 13. There is no eyewitness who has seen assault upon Paya Oraon. He was drunk, invited and taken away by the appellant for more drinks. The appellant was carrying a weapon is not the prosecution evidence. PW8 who accompanied them has turned hostile and did not support the prosecution. Though in the fardbeyan PW3 has stated about land dispute between the brothers, in her cross-examination she has admitted that there was no previous dispute between them and evidence of the investigating officer that the prosecution witnesses stated before him about the land dispute would be in the realm of hearsay. The other prosecution witnesses have stated in the Court that they had no knowledge about any land dispute. between the brothers. In the aforesaid circumstances, it is difficult to infer that the appellant had acted with premeditation and motive on his part to commit murder of his brother cannot be imputed. PW10 has stated that the injury found 6n the person of Paya Oraon was grievous in nature, may be caused by a big knife like Nepala and sufficient to cause death in the ordinary course of nature. Mr. Vineet Kumar Vashistha, the learned APP has strenuously argued that the evidence of PW10 is sufficient to convict the appellant for murder. However, we are unable to accept the proposition that evidence of the doctor that the injury was sufficient to cause death can form the foundation for convicting a person under section 302 of the Indian Penal Code. Under clause Thirdly to section 300 of the Indian Penal Code the prosecution is required to establish that the accused intended to cause the particular injury and that injury was sufficient to cause death in the ordinary course of nature. There are two distinct parts of clause Thirdly to section 300 of the Indian Penal Code, the first part refers to intention of the accused. In Jagrup Singh v. State of Haryana (1981) 3 SCC 616 the Hon'ble Supreme Court has held that in order to bring a case within clause Thirdly of section 300 of the Indian Penal Code it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In yet another judgment, in Randhir Singh v. State of Punjab (I981) 4 SCC 484 the Hon'ble Supreme Court has observed as under: "8 Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury. The weapon was not handy. He did not possess one. Altercation took place between his father and the deceased and he gave blow with a kassi. In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury. True it is that the injury proved fatal and was opined in the ordinary course of nature to be sufficient to cause death. We need not dilate upon this subject in view of a very recent decision of this Court in Jagrup Singh v. State of Haryana. Sen, J., speaking for the Court, after referring to various previous decisions on the subject including the one relied upon in this case, Virsa Singh v. State of Punjab observed that in order to bring the case within para III of Section 300 of the IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted…." 14. An injury over the abdominal area the extent of which was such that the intestine was bulging out was definitely serious and grievous in nature, but at the same time the victim was able to speak - we have accepted the evidence of the informant that her husband made a dying declaration before her, and given the' fact that he died 14 days after he was stabbed by his brother are such circumstances which unerringly indicate that the appellant had no intention to cause death and the requisite intention as envisaged under clause Thirdly or knowledge that his act was so imminently dangerous that in all probability would cause death as provided under clause Fourthly to section 300 of the Indian Penal Code cannot be inferred. Most importantly, the findings recorded by PW9 that the stab wounds had degenerated and there was sign of peritonitis in the wound reflect that Paya Oraon was not provided proper treatment. May be, PW9 has observed that peritonitis has developed due to the stab injuries this cannot be forgotten that Paya Oraon has not died instant death and the stab injuries caused by the appellant were not the immediate cause of his death. 15. 1n the aforesaid factual scenario, we are of the opinion that conviction and sentence of the appellant under section 302 of the Indian Penal Code is not sustainable and, accordingly, the judgment of conviction and the order of sentence, both dated 10.02.2010, against the appellant, namely, Jaga Oraon for the offence under section 302 of the Indian Penal Code passed by the learned Additional Judicial Commissioner, F.T.C. VI, Ranchi in Session Trial Case No. 134 of 2009, are set-aside. 16. The appellant, namely, Jaga Oraon is convicted and sentenced to R.I for 7 years under section 304 Part n of the Indian Penal Code. 17. Mr. Vineet Kumar Vashistha, the learned APP states that the appellant, namely, Jaga Oraon who has served the sentence of more than 17 years and 2 months, with remission, is in custody. 18. Accordingly, the appellant, namely, Jaga Oraon who is in custody shall be released forthwith, if not wanted in connection to any other criminal case. 19. In the result, Criminal Appeal (DB) No. 554 of 2015 is partly allowed, in the aforesaid terms. 20. We record our appreciation to the valuable assistance rendered by Ms. Shilpi Sandil, the learned Amicus who has meticulously prepared synopsis, notes of argument and supplemented her arguments by filing additional grounds supported by judgments for challenging the judgment passed against the appellant in Session Trial Case No. 134 of 2009. We also appreciate the assistance of Mr. Vineet Kumar Vashistha, the learned APP. 21. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail superintendent through 'Fax'. 22. Let the lower Court records be sent to the Court concerned forthwith.