JUDGMENT : Shree Chandrashekhar, J. Against their conviction and sentence in Sessions Trial No.170 of 2008, the appellants are in appeal under section 374(2) of the Code of Criminal Procedure. 2. In the night of 31.03.2008, Manga Mundri, Sumi Mundri and Madhusudan Mundri were attacked by Ram Ratan Mundari @ Bene Mundari and Sangram Mundari. Two of them died on the spot and Madhusudan Mundri who was given First-Aid at Primary Health Center, Bandgaon was brought to RIMS, Ranchi for treatment, however, he succumbed to the injuries within few hours. The statement of Madhusudan Mundri was recorded at about 00:30 hrs. in the intervening night of 30/31.03.2008 by Arjun Paswan, officer-in-charge of Bandgaon P.S. On the basis of his fardbeyan} Bandgaon P.S. Case No.17 of 2008 was lodged at 09: 15 AM on 31.03.2008 under sections 302/307/34 of the Indian Penal Code. Madhusudan Mundri has stated that his cousin brothers, namely, Ram Ratan Mundari and Sangram Mundari wanted to grab his properties and in the past on several occasions they had threatened and raised dispute over his landed properties. On 30.03.2008, after taking dinner he left for Geneora (a community sleeping shelter) at about 08:30 PM. On the way Sangram Mundari and Ram Ratan Mundari who were carrying dagger waylaid him, Sangram Mundari caught hold of him while Ram Ratan Mundari struck dagger (chhura) blows over his abdomen. He ran away crying and pressing his intestine which was bulging out due to the dagger injury and fell on the ground near the house of Somrai Mundri, adjacent to his own house. Both the accused declared that they would finish his entire family and started assaulting his mother aged about 45 years and the younger brother aged about 12 years, indiscriminately with dagger and killed them. Several villagers had rushed there, they saw both the accused fleeing away and chased them. Arjun Paswan after recording the fardbeyan of Madhusudan Mundri returned to Bandgaon P.S where a First Information Report was lodged under sections 302/307/34 of the Indian Penal Code against Ram Ratan Mundari and Sangram Mundari. 3. G.P. Sah, a sub-Inspector of Police took up the investigation and recorded further statement of Madhusudan Mundri. In course of investigation, Somrai Mundri, Diver Mundri and Budhu Mundri stated before the investigating officer that on hearing cries (huZZa) they had gone to the place of occurrence. 3. G.P. Sah, a sub-Inspector of Police took up the investigation and recorded further statement of Madhusudan Mundri. In course of investigation, Somrai Mundri, Diver Mundri and Budhu Mundri stated before the investigating officer that on hearing cries (huZZa) they had gone to the place of occurrence. The other co-villagers, namely, Mahajan Mundri, Patras Mundri, Balram Mundri and Sukhram Mundri stated before him that about the occurrence Somrai had informed them in the night of 30.03.2008. They had gone near his house and found Madhusudan Mundri seriously injured, his mother and younger brother had died. These witnesses stated before the investigating officer that Madhusudan Mundri had told them that Ram Ratan Mundari and Sangram Mundari had assaulted them. In course of treatment Madhusudan Mundri succumbed to the injuries at RIMS, Ranchi; the inquest was prepared by Mr. Anup Kumar Singh, S.I of Bariatu P.S. and the investigating officer collected the postmortem report. Dr. Santosh Kumar Srivastava who conducted the postmortem examination has found ten incised wounds on the dead body of Manga Mundri and one incised wound on Sumi Mundri, a number of ribs of both the deceased persons were found fractured and the dead body of Manga Mundri was swollen (distended). In the opinion of the doctor, the injuries were caused to them by a sharp object such as knife. 4. He has observed the following antemortem injuries on the dead bodies: Manga Mundri (I) Incised wound below right clavicle 1 x 1/2'x 1 1/2" (II) Incised Wounds on right chest 2'x 1/2" x 1 1/2" (III) Two incised wounds on chest 4 inch below nipple 1'x 1/2" x 1/2" (IV) Two incised Wounds in right arm 2'x 1/2'x 1" (V) Two incised wounds on right forearm 2'x 1/2'x 1" (VI) Incised wound on right thigh 1 inch above knee 2"x 3'x 1" (VII) Incised wound on right side of back 1 x 1/2 'x 1/4" Sumi Mundri (I) Abrasion on left breast, 3"x 2" black in colour. (II) Abrasion on left chest below breast 5'x 3" (III) Incised wound on right hypochondrium in post axillary line 2"x 1/2" x deep to peritoneal cavity with part of omentum and intestine protruding. 5. Dr. (II) Abrasion on left chest below breast 5'x 3" (III) Incised wound on right hypochondrium in post axillary line 2"x 1/2" x deep to peritoneal cavity with part of omentum and intestine protruding. 5. Dr. Tulsi Mahto who conducted the postmortem examination over the dead body of Madhusudan Mundri on 01.04.2008 has observed stitched wound with 15 stitches about 16 cm in length over his abdominal area and repair of small intestine and mesentery. He has noted the following observations: (I) The abdomen little distended and bandaged. Orange tubes of both planks of abdomen were present and done surgically. (II) Stitched wound un-united 16 c. m in length with 15 stitches in position situated on the left to middle of front part of the abdomen (left paramedian incision) and stitched wound 3 c.m long on left side of front of abdomen starting from the middle part of the said paramedian incision placed transversely (appears to be within 72 hours). (III) There is repair of small intestine at two places and repair of mesentery at one place. There is one incised wound In the mesentry which is not repaired. There is repair of transverse colon at two places. There is contusion of ascending colon and transverse colon around their function. There is contusion of tissues around the right kidney with contusion of kidney also with collection of blood and blood clot around the right kidney about 250 grams. 6. A charge-sheet was filed against the accused on completion of the investigation and they have faced the trial on the charge under section 302/34, 307/34 and 120B of the Indian Penal Code. 7. The learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa has treated the fardbeyan of Madhusudan Mundri as dying declaration. He has held that the witnesses have fully supported making of a dying declaration by Madhusudan Mundri. He has further held that dying declaration of Madhusudan Mundri inspires confidence and though it was not recorded before a Magistrate the dying declaration which was recorded in the presence of Diver Mundri and Mahajan Mundri inspired confidence. 8. The learned 1st Additional Sessions Judge has held as under: "30. From the aforesaid discussion and case law it is apparent that Soma Mundari and Mangra Mundari's dead bodies were seen by the villagers and witnesses examined in this case even I.O. has seen the dead bodies. 8. The learned 1st Additional Sessions Judge has held as under: "30. From the aforesaid discussion and case law it is apparent that Soma Mundari and Mangra Mundari's dead bodies were seen by the villagers and witnesses examined in this case even I.O. has seen the dead bodies. The eyewitness of the stabbing by accused was Madhusudan Mundari who is informant-cum-injured and evidence on record show that Madhusudan Mundari had explained that Sangram Mundari and Ram Ratan Mundari both cousin brother stabbed him and his intestine came out of the abdomen Mandusudan had also stated that accused persons were telling to kill all family members of him (Madhusudan) and thereafter both the accuseds went inside the Madhusudan house and killed Soma Mandri, mother of informant and Mangra Mundari, brother of informant Madhusudan. I.O. P W 11 Arjun Paswan had seen Madhusudan telling this fact while Madhusudan was in a fit state of mind and Madhusudan narrated before them and police officer recorded the statement being translated by Mahajan Mundri P W 3 and Diver Mundri PW2, PW3 Mahajan Mundri has totally corroborated the fact on evidence. Even P W 2 Diber Mundri has also admitted his signatures on fard-beyan (Ext.1) on inquest report marked Ext.2 and on seizure list Ext.3 series, villagers PW4 Patras Mundari has also corroborates the evidence that Madhusudan told them that the accused persons killed them and this Patras Mundari has also signed the inquest report ExtA. P W 6 Balram Mundri had also assembled in the night after occurrence and according to him Madhusudan was in sense but injured and his intestine had come out of the abdomen, he told the name of Sangram Mundri and Ram Ratan Mundari who had stabbed him and also killed Soma Mundari and Mangra Mundri. From perusal of evidence of these witnesses including I.O. P W 10 and P W 11 it is clearly apparent that Madhusudan had made such statement while he was in sense. The motive of occurrence is said to be land dispute the medical evidence of P W 8 Doctor Santosh Kumar Shrivastav and P W 9 Tulsi Mahto also corroborate that injuries might be caused by sharp cutting weapon such as knife. The post-mortem report corroborates Ext. 5. The inquest report Ext.7 series also corroborates and Ext. 8 series seizure list shows the seizure of blood stained Chura and blood stained earth. The post-mortem report corroborates Ext. 5. The inquest report Ext.7 series also corroborates and Ext. 8 series seizure list shows the seizure of blood stained Chura and blood stained earth. Although the I. O. sent all these things for test to F S. L. but before collecting the report the evidence of this case have been closed by my predecessor in office. In spite of that non-availability of F.S.L. report does not create any Suspicion as other ocular evidences medical evidences, seizure lists inquest reports, post-mortem reports and statement of injured before villagers and I.O are sufficient to prove the fact and allegation. 31. So far the case law cited on behalf of both side it is clear that there is no requirement of law that a dying declaration must be necessary made to magistrate what is essentially required is that a person records that statement must be satisfied with deceased was in a fit state of mind and statement was made voluntarily and truthful as decided by the Hon'ble Supreme Court five Judges Bench in Laxman-v. State of Maharashtra reported in AIR 2002 Supreme Court 2973. The Hon'ble Supreme Court also held in case law reported in 2003 Criminal Law Journal 3717 that it can not be laid down declaration as a absolute rule of law that dying declaration can not form the sole basis of conviction unless it is corroborated. But in the instant case this Court finds that they are several corroboration of occular evidence corroborate by medical evidence and other documentary evidence as stated above. In this case statement u/s. 161 is not basis of conclusion as stated in case of Sukhan reported in 2000 Criminal Law Journal page 229 but this Court comes to the conclusion on the basis of the all corroborative evidence including the statement of injured Madhusudan who died during treatment. The statement of witnesses PW3, PW4, PW6, P W 7, P W 10 and P W 11 are sufficient for corroboration as stated by informant Madhusudan injured, moreover the statements of P W 1 Somrai, P W 2 Diver also corroborate through documentary evidence and they have supported the papers prepared on spot, the medical evidence corroborates the cause of death of all the three deceases by stabbing and stated by P W 8 and P W 9 both the Doctor who conducted post-mortem examination. Therefore, I came to the conclusion that prosecution has been able to prove the charge beyond the doubt that both the accused persons Sangram Mundari and Ram Ratan Mundri committed murder of Madhusudan Mundari, Soma Mundari and Mangra Mundari, all the members of a family with a motive to grab their land and both the accuseds had a common intention for this purpose and they killed deceased so both the accuseds Sangram Mundari and Ram Ratan Mundari are held guilty for the offence committed u/s 302/34 I.P C and convicted accordingly. " 9. In Sessions Trial No. 170 of 2008, the appellants were convicted and sentenced to R.I for life and a fine of Rs.5000 / - each under section 302/34 of the Indian Penal Code. In so far as the offences under sections 307/34 and 120B of the Indian Penal Code are concerned, the learned trial Judge felt that since the accused persons were convicted for a graver offence it was not necessary to dwell upon the other charges under section 307/34 and 120B of the Indian Penal Code. 10. The fate of the appellants was hanging with the dying declaration of Madhusudan Mundri. The finding of the learned trial Judge that the dying declaration inspires confidence and provides sufficient basis for convicting the appellants is challenged on two grounds; (i) Madhusudan Mundri was not in a fit state to speak, and (ii) the dying declaration IS not free from suspicious circumstances. 11. A dying declaration is in the realm of hearsay. The rule against admission of hearsay is fundamental but there are well carved out exceptions to the rule of hearsay in the Indian Evidence Act, such as sections 6, 8 and 32. A dying declaration is made admissible in evidence on the principle of necessity. Section 32 of the Indian Evidence Act provides that statement of relevant fact by a person who is dead or cannot be found, etc., is relevant. The dying declaration can be written or oral and any statement made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, which relates to cause of death is a relevant fact and admissible in evidence. Sub-section (1) to section 32 of the Indian Evidence Act explains that it is not necessary that at the time when statements considered relevant under section 32 of the Act are made the person who has made such statement was under the expectation of death. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. 12. It further provides that not only the statement relating to the cause of death but also any of the circumstances of the transaction which resulted in the death is a relevant fact in a case in which the cause of that person's death comes into question. 12. The statement of Madhusudan Mundri recorded by PW 10 In the intervening night of 30th/3pt March 2008 reads as under: esjk uke e/kqlwnu eqaMjh mez djhc 18 o"kZ] firk LoŒ dSjk eqaMjh] lkŒ&Hkk.Mjk] Fkkuk cUnxk¡o] ftyk&if'pe flagHkwe gSA eSa vkt fnukad ukekywe ¼31-03-2008½] fnu lkseokj le; 00-30 cts jkr esa vki cUnxk¡o Fkkuk ds iqfyl inkf/kdkjh ds le{k vius ?kj ds lkeus xzkeh.k egktu eaMqjh isŒ&LoŒ rqjh eaqMjh ds ek/;e ls viuk c;ku djrk gwa fd fnukad ukekywe ¼30-03-2008½ fnu jfookj dh jkf= esa djhc 08-30 cts esa [kkuk [kkdj vius xk¡o ds lkewfgd lksus ds ?kj ¼fxfu vksM+k½ esa lksus ds fy, fudyk gh Fkk fd igys ls ?kkr yxk;s esjk ppsjk HkkbZ ¼1½ laxzke eaqMjh ¼25 o"kZ djhc½ rFkk ¼2½ jke jru eqaMjh mQZ cSus eqaMjh ¼20 o"kZ djhc½ nksuksa isŒ ckVs eqaMjh vius&vius gkFk esa Nqjk fy;s vk;s vkSj eq>s laxzke eqaMjh idM+ fy;s rFkk jke jru eqaMjh esjs isV esa Nqjk ekj fn;k] esjk varM+h ckgj fudy x;kA viuk isV dh varM+h nkcs gq, jksrs&fpYykrs Hkkxk vkSj vius ?kj ds cxy esa lksejkbZ eqaMjh ds ?kj ds lkeus fxj x;kA fQj mDr nksuksa ppsjk HkkbZ] ;g cksyrs gq, fd iwjk ifjokj dks ekj dj [kRe dj nsuk gS] esjs ?kj ds lkeus ysVh gqbZ esjh ek¡ lkseh eqaMjh ¼45 o"kZ djhc½ rFkk esjk HkkbZ eaxk eqaMjh ¼12 o"kZ djhc½ dks vkdj va/kk/kqa/k Nqjk ls ekj&ekj dj gR;k dj fn;sA gR;k djus ds ckn nksuksa ?kj ds mRrj fn'kk esa Hkkxus yxsA rc rd xk¡o ds dbZ yksx vk x;s tks nksuksa dks Hkkxrs gq, ns[ks vkSj ihNk fd;sA ?kVuk dk dkj.k tehu&tknkn laca/kh fookn gSA mDr nksuksa ppsjk HkkbZ esjk tehu&tknkn dks gM+iuk pkgrs gSA iwoZ esa Hkh os nksuksa tehu&tknkn gM+ius dh /kedh dbZ ckj fn;s gSA esjk nkok gS fd esjk nksuksa ppsjk HkkbZ ¼1½ laxzke eaqMjh ,oa ¼2½ jke jru eqaMjh mQZ cSus eqaMjh nksuksa isŒ&ckVs eqaMjh] lkŒ&Hkk.Mjk] Fkkuk&cUnxk¡o] ftyk&if'pe flagHkwe feydj esjh tehu&tknkn gM+ius dh fu;r ls esjh ek¡ lkseh eaqMjh rFkk NksVk HkkbZ eaxk eqaMjh dks Nqjk ls ekj&ekj dj gR;k fn;k rFkk eq>s Hkh tku ls ekjus dh fu;r ls esjk isV esa Nqjk ekj fn;kA ;gh esjk c;ku gSA eSa viuk c;ku xzkeh.k egktu eqaMjh ds ek/;e ls i<+okdkj lqu oks le> dj cka;s vaxwBs dk fu'kku cuk fn;kA English Translation: My name is Madhusudan Mundri, aged about 18 years, s/o Late Kaira Mundari, r/o Bhandra, PS.-Bandgaon, District West Singhbhum. Today, do not know the date (31.03.2008), Monday at 00:30 O'clock at night, I give my statement before the Police Officer of Bandgaon P S. in front of my house through the villager Mahajan Mundri s/o Late Turi Mundri that, the date is not known (30.03.2008), on Sunday at about 8:30 O'clock in the night I proceeded towards the Community Sleeping Hall (Geneora) of my village after having dinner. In the meantime, my cousins (1) Sangram Mundari (aged about 25 years) and (2) Ram Ratan Mundari @ Bene Mundari (aged about 20 years), both son of Bate Mundari, who carrying knife were waiting waylaid me. Sangram Mundari caught hold of me and Ram Ratan Mundari attacked with a knife on my stomach due to which my intestine came out. Holding my intestine, I ran away crying and fell down in front of the house of Somrai Mundri which is adjacent to my house. Thereafter, both my above named cousins declared that they would finish my entire family by killing them. They killed my mother Sumi Mundri (aged about 45 years) who was lying in front of my house and my brother Manga Mundri (aged about 12 years), by indiscriminate assault with the knife. After committing murder both of them started fleeing towards north direction of the house, and then several villagers came there who saw both of them running away and thereafter they chased them. The reason behind the incident is the dispute related to landed property. Both my cousins want to grab my landed property and earlier also they have threatened many times to grab my landed property. It is my claim that my both cousins (1) Sangram Mundari and (2) Ram Ratan Mundari @ Bene Mundari, s/o Bate Mundari, r/o Bhandra, PS.-Bandgaon, District-West Singhbhum have together committed the murder of my mother Sumi Mundri and my younger brother Manga Mundri by knife with intent to grab our landed property and also attacked me on my stomach using a knife with intent to kill me. This is my statement. I put my left thumb impression after it was read by the villager Mahajan Mundri and having understood the same. 13. Madhusudan Mundri was brought to Primary Health Center, Bandgaon and thereafter taken to RIMS, Ranchi. This is my statement. I put my left thumb impression after it was read by the villager Mahajan Mundri and having understood the same. 13. Madhusudan Mundri was brought to Primary Health Center, Bandgaon and thereafter taken to RIMS, Ranchi. He died in the wee hours of 31.03.2008 and the doctors who attended him at Primary Health Center, Bandgaon and at RIMS, Ranchi were not examined during the trial. It was contended that since any doctor has not certified that Madhusudan Mundri was in a fit state to speak and he was so badly injured that PW3 has described him as adhmara (almost dead), it is impossible to believe that he made a statement before the investigating officer. 14. The fardbeyan of Madhusudan Mundri was recorded by S.I Arjun Paswan in the midnight at village Bhandra. The fardbeyan bears signature of PW2-Diver Mundri and PW3-Mahajan Mundri who in the Court have identified their signatures on the fardbeyan. PW2 who was declared hostile has admitted in the Court that his statement was recorded by the police. He is also a witness to the inquest report and seizure-memo. In his cross-examination by the prosecution he has admitted that statement of Madhusudan Mundri was recorded by the police in his presence and at that time PW3 was also present there. He has stated thus: "4. Madhusudan's statement was written by the police in my presence and also in front of Mahajan and I signed the fardbeyan. This is my signature - marked as Exhibit-I." ¼e/kqlqnu dk c;ku iqfyl esjs lkeus fy[kh rFkk egktu ds lkeus Hkh fy[kh rFkk eSa insZ c;ku ij gLrk{kj fd;k Fkk ;gh oks esjk gLrk{kj gS ftls Án'kZ&1 vafdr fd;k tkrk gS½ However, in the cross-examination by the defence he has stated that he did not read the fardbeyan of Madhusudan Mundri nor was it read over to him and as directed by the Police he put his signature on the fardbeyan, inquest report and. seizure-memo. PW3 has deposed in the Court that PWI came to his house in the night at about 08:30 PM and woke him up. He told him that two persons were killed, whereupon he accompanied him and saw the dead body of Sumi Mundri and Manga Mundri. He found Madhusudan Mundri lying seriously injured (adhmara), his intestine was coming out. On enquiry, Madhusudan Mundri told him that his cousin brothers assaulted him. He told him that two persons were killed, whereupon he accompanied him and saw the dead body of Sumi Mundri and Manga Mundri. He found Madhusudan Mundri lying seriously injured (adhmara), his intestine was coming out. On enquiry, Madhusudan Mundri told him that his cousin brothers assaulted him. He has identified his signature on the fardbeyan and stated that Madhusudan Mundri gave his statement in the police station. He has affirmed that the inquest report and seizure-memo which were prepared in his presence were signed by him. But, in the cross-examination by the defence he has stated that he did not read the fardbeyan, inquest report and the seizure-memo. During the trial, PWIO who has recorded the statement of Madhusudan Mundri has deposed in the Court that he recorded the fardbeyan in the intervening night of 30/31.03.2008 in presence of PW2 and PW3 and at that time he was conscious. The fardbeyan was read over and explained to Madhusudan Mundri and he put his thumb impression (L.T.I) having found the same correct. He has identified his endorsement on the fardbeyan and further stated that after he returned to the police station a First Information Report was lodged under sections 302, 307 read with section 34 of the Indian Penal Code and the investigation was entrusted to PW11. In his cross-examination he has stood to his grounds and again asserted that Madhusudan Mundri was in his complete senses, his eyes were open and he was talking. He has further clarified that he gave statement in Mundari language which was translated by PW3. The doctor who conducted his postmortem also seems to affirm that Madhusudan Mundri could have given his statement. The statement of PW2 and PW3 as regards contents of the fardbeyan not read over to them in no way creates a doubt that Madhusudan Mundri was not in a fit state to speak and he did make a statement before the police. 15. Now, we would examine whether there are other evidences to support the prosecution. PW1 who in the Court resiled from a major part of his statement under section 161 of the Code of Criminal Procedure. has stated in his examination-in-chief that the intestine of Madhusudan Mundri had come out and he died in the hospital. PW5 has flatly denied any knowledge about the incident. PW1 who in the Court resiled from a major part of his statement under section 161 of the Code of Criminal Procedure. has stated in his examination-in-chief that the intestine of Madhusudan Mundri had come out and he died in the hospital. PW5 has flatly denied any knowledge about the incident. He has deposed in the Court that his statement was not recorded by the police. PW4 was sleeping in the night when PW1 came and informed him about the incident. He was one amongst others who had accompanied Madhusudan Mundri to the police station and hospital. He has stated that Madhusudan Mundri who died in course of treatment at Ranchi told him that Ram Ratan Mundari and Sangram Mundari had stabbed him. PW6 was called by PW1. He has also claimed that Madhusudan Mundri told him that the appellants had stabbed him. He has seen the dead bodies of Sumi Mundri and Manga Mundri in the courtyard of their house. On a suggestion by the defence that he has not seen the incident of stabbing and killing by the appellants, he admits the same and states that he has narrated the incident as told by Madhusudan Mundri. Like PW3, PW4 and PW6, PW7 was also informed about the occurrence by PW 1. He has supported the other witnesses and stated that Madhusudan Mundri made a statement involving the appellants in the crime. He has affirmed presence of PW1, PW3, PW5, PW6 and others, about six persons, at the place of occurrence when he had arrived there. In “Bhajju v. State of M.P.” (2012) 4 SCC 327 the Hon'ble Supreme Court has observed that it is admissible to use the examination-in-chief as well as the cross-examination of a hostile witness in so far as it supports the case of the prosecution. In “State of U.P. v. Ramesh Prasad Misra” (1996) 10 SCC 360 the Hon'ble Supreme Court has observed that evidence of a hostile witness would not be rejected in entirety if the same has been given in favour of either the prosecution or the accused, but is required to be subjected to careful scrutiny and that part of the evidence which is consistent with either the case of the prosecution or that of the defence, may be relied upon. Besides the other witnesses, PW 1 and PW2 who were declared hostile have also supported the prosecution albeit partly and their evidence cannot be discarded altogether. The defence set up by the appellants is one of simple denial. The prosecution witnesses have stated that it was PW 1 who came to their house and informed them about the occurrence - PW 1 is the only person who had first seen the injured Madhusudan Mundri. A hypothetical alternative scenario that PW 1 himself was involved in the killings and in collusion with the investigating officer has fabricated the statement of Madhusudan Mundri also seems impossible, for PWI has turned hostile. 16. The evidence of PW2, PW3, PW4, PW6 and PW7 which throws considerable light on the cause of death of the informant, his mother and the brother and also on the circumstances leading to the cause of their death, but has remained unchallenged, must be accepted true - it is not demonstrated that their evidence suffers from any inherent improbability or inconsistency. In “Laxmibai v. Bhagwantbuva”. (2013) 4 SCC 97 the Hon'ble Supreme Court with reference to sections 138 and 146 of the Indian Evidence Act has elucidated the law on the subject, thus; "40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.” 17. The Latin words 'Leterm Mortem' which means "words said before death" inspired origin of the term dying declaration, a term not defined in the Indian Evidence Act. 'Nemo Moriturus praesumitur mentire' which means "no one would meet the Maker with a lie in his mouth" is the underlying principle which was adopted by the medieval English Courts to admit dying declaration as evidence. The earliest recorded history of a dying declaration admitted in evidence is found in a case of the year 1202 [Phipson on Evidence: 15th edn. at page 886 ]. A dying declaration enjoys a sacrosanct status in law and it can form the sole basis of conviction even without corroboration. In “Paniben (Smt) v. State of Gujarat”, (1992) 2 SCC 474 the Hon'ble Supreme Court has held that a dying declaration is entitled to great weight and once the Court is satisfied that the declaration is true and voluntary, it could base conviction without corroboration. "Paniben" was followed by "Kundula Bala Subrahmanyam v. State of A.P.,, (1993) 2 SCC 684 wherein the Hon'ble Supreme Court has observed that statement made by a person on the verge of his death must be accorded a special sanctity as at that solemn moment a person IS most unlikely to make any untrue statement. Simply put, the law on the subject is fairly settled that an accused can be convicted solely on the basis of a dying declaration and it is not necessary that the dying declaration must be corroborated by other independent evidence; a corollary is that even on the basis of uncorroborated dying declaration conviction of an accused can be maintained. Simply put, the law on the subject is fairly settled that an accused can be convicted solely on the basis of a dying declaration and it is not necessary that the dying declaration must be corroborated by other independent evidence; a corollary is that even on the basis of uncorroborated dying declaration conviction of an accused can be maintained. Therefore, a dying declaration requires closer scrutiny and its truthfulness is judged in the light of surrounding circumstances. From the postmortem report it appears that the condition of Madhusudan was precarious and as stated by the witnesses a towel was tied around his abdomen to prevent further bleeding from the abdominal injury. PW2 and PW3 had no enmity with the appellants nor was there any suggestion by the defence that they came to the Court to implicate them falsely in this case. The investigating officers had no animus, no motive was attached and no suggestion was put forth to indicate any motive on his part to concoct a false story against them. Madhusudan Mundri was quite young, aged about 18 years. The prosecution witnesses had assembled near him immediately after the occurrence and he disclosed the name of his assaulters to them. His youth had kept him alive and he was able to give his statement when the police arrived in the village. Madhusudan Mundri has survived for few hours, it was night time and the sequence of events discloses that there was no time to call a Magistrate to record his statement. The appellants are his cousin brothers who were on inimical terms with him. Identity of the appellants even on account of insufficient light at the place of occurrence was not challenged during the trial, rather the case set up by the defence is that Madhusudan Mundri never made a dying declaration and the appellants were falsely implicated in this case. The attending circumstances in the case do not suggest any reason for false implication of the appellants except the statement of Madhusudan Mundri that they were trying to grab his properties, which, in our opinion can be a strong motive on part of the appellants to finish the entire family of the informant. The attending circumstances in the case do not suggest any reason for false implication of the appellants except the statement of Madhusudan Mundri that they were trying to grab his properties, which, in our opinion can be a strong motive on part of the appellants to finish the entire family of the informant. In their examination under section 313 of the Code of Criminal Procedure making of a dying declaration by Madhusudan Mundri in presence of the prosecution witnesses and his statement before PW 1 0 were clearly put to them but they have chosen to remain silent. Matthew Arnold has said, "truth sits upon the lips of a dying man". The dying declaration of Madhusudan Mundri is clear and does not suffer from any inherent improbability or inconsistency. The dying declaration of Madhusudan Mundri recorded by PW10 in presence of PW2 and PW3 inspires confidence and the learned trial Judge has rightly admitted it as a valid piece of evidence. 18. The evidence of PW2, PW3, PW4, PW6 and PW7 that Madhusudan Mundri told them name of the assaulters is relevant and provides the missing link in the chain of evidence tendered by the prosecution. The statement of a dead man whose words are spoken by another person is not considered the best evidence, still, it is held admissible as part of res gestae, an exception to the general rule against hearsay evidence. In “Homes v. Newman” (1931)2Ch.112 the Privy Council observed that: "res gestae) it has been stated, is the phrase adopted to provide a respectable legal cloak to a variety of cases to which no formula of precision can be applied". Res gestae” a Latin phrase which was adopted in common law as far back as in the year 1637 in "Ship Money cases [(1637) 3 How. St. Tr. 825,988] refers to "the events at issue or others contemporaneous with them” [B. Garner, A Dictionary of Modern Legal Usage, 2nd ed. (Oxford, 1995)]. Taylor writes that res gestae includes everything that may be fairly considered an incident of the event under consideration [According to R. Croom Johnson & G. Bridgman (ed.) Taylor on Evidence, 12th ed., You, (London, 1931), p.371] . (Oxford, 1995)]. Taylor writes that res gestae includes everything that may be fairly considered an incident of the event under consideration [According to R. Croom Johnson & G. Bridgman (ed.) Taylor on Evidence, 12th ed., You, (London, 1931), p.371] . In “Teper v. R.”, (1952) A.C 480 the Privy Council has elucidated the rule of res gestae as under: "This at least may be said, that it is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it in time, place and circumstances, that they are part of the thing being done and so an item or part of real evidence and not merely a reported statement". 19. The rule of res gestae expounded by Lord Normand In "Teper' was incorporated in section 6 of the Indian Evidence Act by way of statutory illustration (a), which reads as under: Illustration (a): A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact. 20. In “Rajput Jabbarsingh Malaji v. State of Gujara”, (2011)6 SCC 308 the wife of the victim who was an eyewitness informed the witnesses how her husband was assaulted. The Hon'ble Supreme Court has discussed relevancy of the evidence of those witnesses, thus; "14. The statement of Pepaben stands fully proved and corroborated from the evidence of PW5 and PW6, who were informed soon after the incident as to how the injury was inflicted by the appellant on her husband. Their statements also reveal that they were in the vicinity of the scene of crime and were among the many members of the victim's family who had rushed to the spot as soon as they heard PW3's wails and shrieks. Thus, under Section 6 of the Evidence Act, 1872 (hereinafter referred to as "the Act"), PW5 and PW6 were to be treated as res gestae witnesses. Their evidence lends full support to the case of the prosecution and corroborates the evidence of PW3 Pepaben. She had first disclosed the full description of the incident including the name of appellant to them, thus they would be res gestae witnesses ... " 21. Their evidence lends full support to the case of the prosecution and corroborates the evidence of PW3 Pepaben. She had first disclosed the full description of the incident including the name of appellant to them, thus they would be res gestae witnesses ... " 21. There are two general requirements under section 6; necessity and reliability. The essence of the rule of res gestae which is incorporated in section 6 of the Indian Evidence Act is that a fact though not in issue is so connected with the fact in Issue as to form part of the same transaction that it becomes relevant by itself. Section 6 makes a statement or the fact admissible in evidence on account of spontaneity and immediacy of such statement of fact in relation to the fact in issue. Dying declaration of Madhusudan Mundri and cause of his death are in issue here and evidence of PW3, PW4, PW6 and PW7 which indicates that immediately after Madhusudan Mundri was assaulted by the appellants on hearing his cries PWI arrived at the scene and called the other prosecution witnesses before whom Madhusudan Mundri made a dying declaration on involvement of the appellants lends credence to the prosecution story. There was a definite and live nexus between the cause of death and statement of these witnesses, which provides the missing link in the chain of evidence. The statement of PW2, PW3, PW4, PW6 and PW7 is admissible as evidence and fortifies the fardbeyan of Madhusudan Mundri from any attack on the ground of inherent improbability in the dying declaration or any suspicious circumstance surrounding it. The circumstances put forth in evidence by the prosecution make us believe that there was no possibility of concoction and distortion, and moreover these witnesses were not to gain anything by tampering the statement of Madhusudan Mundri. The statement of PW3, PW4, PW6 and PW7 to the effect that PW1 came and informed them about the occurrence and Madhusudan Mundri disclosed name of the appellants to them are so intertwined in time and space with the circumstances of the cause of death of Madhusudan Mundri forming part of the same transaction that it becomes relevant under section 6. 22. The evidence of the investigating officer was a major point of discussion during the course of hearing. 22. The evidence of the investigating officer was a major point of discussion during the course of hearing. The argument is that in absence of materials which could have proved complicity of the appellants in the crime or otherwise and those materials were available but not collected by the investigating officer, the case set up by the prosecution against the appellants was so weakened as to give benefit of doubt to them. 23. PW 11, the investigating officer has deposed in the Court that fardbeyan of Madhusudan Mundri was recorded by PW10 in his presence and after taking up charge of the investigation he recorded restatement of the informant. He has stated that the dead bodies of Sumi Mundri and Manga Mundri were lying In the courtyard. He has seen huge quantity of blood spilled on the ground, prepared the seizure-list in presence of two witnesses and recovered a large knife from the bushes near the house of Madhusudan Mundri - the knife was blood-stained. On the information from Hawaldar Suresh Paswan that Madhusudan Mundri passed away he had gone to RIMS, Ranchi and sent the dead body for postmortem examination. In the meantime, inquest was prepared by Anup Kumar Singh, S.I of Bariatu P.S, a copy of which was received by him. He has described the place of occurrence but admits that he did not prepare a sketch map. The appellants surrendered on 03.04.2008 and he has recorded their statement in the jail. He has proved carbon copy of the inquest report and postmortem report. He has also proved statement of PWI and PW2, the hostile witnesses, recorded under section 161 of the Code of Criminal Procedure whereunder they stated that Madhusudan Mundri disclosed before them name of the assailants. His examination-in-chief misses certain important facts which if spoken would have cleared the doubts, what the defence has sought to exploit. It is fundamental that facts do not change on account of inconsistent evidence of the witnesses. Had the Public Prosecutor been alert enough and the investigating officer deposed relevant facts from the records, inconsistencies appearing in the testimony of the prosecution witnesses could have been easily explained and doubts removed. Under section 172(2) of the Code of Criminal Procedure any criminal Court may use the police diary in aid of enquiry or trial. Had the Public Prosecutor been alert enough and the investigating officer deposed relevant facts from the records, inconsistencies appearing in the testimony of the prosecution witnesses could have been easily explained and doubts removed. Under section 172(2) of the Code of Criminal Procedure any criminal Court may use the police diary in aid of enquiry or trial. We find from the original records that after recording his restatement Madhusudan Mundri was taken to Primary Health Centre, Bandgaon by the police. It is recorded In the case diary at para 5 that sufficient facilities were not available at the Primary Health Centre and Madhusudan Mundri was brought to RIMS, Ranchi. The statement of PW3 that in his presence Madhusudan Mundri gave his statement at the police station was a stray statement made contrary to the records. The centre and the police station both were at Bandgaon and in the process of transferring Madhusudan Mundri to RIMS, PW 11 might have stopped at the police station. The statement of Madhusudan Mundri records that it was reduced in writing at 00:30 AM at village Bhandra and PW10 and PW11 have affirmed the same. Under section 114 of the Indian Evidence Act there is a presumption that every official act done by the police was regularly performed - the presumption requires rebuttal. In “State (Gout. of NCT of Delhi) u. Sunil” (2001) I SCC 652 the Hon'ble Supreme Court has observed that it is an archaic notion that actions of the police officers should be approached with initial distrust. 24. The learned counsel for the appellants has contended that there is no eyewitness to murder of Manga Mundri and Sumi Mundri, and Sangram Mundari has not assaulted Madhusudan Mundri and while so, he cannot be convicted under section 302/34 or section 120B of the Indian Penal Code. 25. Madhusudan Mundri has stated In his fardbeyan that Ram Ratan Mundari and Sangram Mundari after assaulting him declared that they would finish his entire family. We get an impression from his statement that he has seen assault upon his mother and brother, but for a moment we would assume that there is no direct evidence that the appellants have committed murder of Manga Mundri and Sumi Mundri. From the evidence of the prosecution witnesses it appears that by the time they arrived at the place of occurrence Manga Mundri and Sumi Mundri were dead. From the evidence of the prosecution witnesses it appears that by the time they arrived at the place of occurrence Manga Mundri and Sumi Mundri were dead. There was no intervening circumstance suggested by the defence and there is no trace of even faintest motive for any other person to kill them. Madhusudan Mundri would not have made false accusations against the appellants for causing death of his mother and brother and from the materials on record we find no reason why the other prosecution witnesses would also lend support to him. The motive attributed to the appellants for the cnme may appear weak but it would not weaken the prosecution case. It is stated that motive loses all its importance in a case where direct evidence of eyewitness is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses are not convincing ["State of U.P. v. Kishanpal" (2008) 16 SCC 73 : "39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a pal1icular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."] In “Suresh Chandra Bahri v. State of Bihar” 1995 Supp (I) SCC 80 : "25 It is difficult to lay down a hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compelled him to commit a particular crime. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compelled him to commit a particular crime. There may be persons who under frustration and on mere trifling domestic matters take decision to commit a serious crime, while others may approach it with cool and calm mind and think more dispassionately before taking any hazardous and serious steps. It all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof.. .... " the Hon'ble Supreme Court while explaining about mystery of motive that what may prompt a person to form an opinion or intention to do certain illegal act has observed that it is difficult to lay down a hard and fast rule as to how and in what manner a person would react. 26. In the trial the indictment which was framed on three counts was clearly explained to the appellants. The following charges were framed against the appellants: "FIRST - That you, on or about the 30th day of March 08 at 8.30 PM. at village-Bhandra, PS-Bandgaon, Dist.-West Singhbhum in furtherance of common intention of you all did commit murder by intentionally or knowingly causing the death of Somi Mundari and Manga Mundari and Madhusudan Mundari. As amended and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance. Secondly- That you, on or about the same day of same year and time at same place in furtherance of common intention of you all, did commit an act to wit stabbed the informant Madhusudan Mundari with such intention or knowledge and under such circumstances that if by that act you had caused the death of Madhusudan Mundari you would have been guilty of murder and thereby committed an offence punishable under Section 307/34 of the Indian Penal Code, and within my cognizance. THIRDL Y- That you, on or about the same day of same year and at same place agreed to do an illegal act to wit murdered Somi Mundari and Manga Mundari and attempted to cause the death of informant with Chhura and the said act was done in pursuance of the agreement and thereby committed an offence punishable under Section 120 B of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by me on the said charge." 27. There was no ambiguity In the charge and the appellants have gone into the trial on clear understanding that they were charged with murder of three persons. They were represented through their counsel and the prosecution witnesses were cross-examined at length. The medical evidence has also provided sufficient corroboration to the prosecution case. The injuries on Manga Mundri and Sumi Mundri were caused by sharp cutting object such as knife and the time elapsed since death was 6 to 36 hours. The inquest was prepared at 05:30 AM, a First Information Report was lodged at 09: 15 AM and the postmortem reports of Manga Mundri and Sumi Mundri disclose that their postmortem examination had started at 01:45 PM. There was little time left for the witnesses to concoct a false story involving the appellants in the occurrence. The approximate time of death of Manga Mundri and Sumi Mundri corroborates the prosecution story that they were done to death in the night of 30.03.2008. PW9, Dr. Tulsi Mahto who has conducted postmortem examination on the dead body of Madhusudan Mundri has found stitched wound on his abdomen and the small intestine was repaired at two places. These findings corroborate the evidence of the prosecution witnesses that Madhusudan Mundri was taken to RIMS where in course of treatment he succumbed to the injuries. PW9 has also observed that the injuries on Madhusudan Mundri were caused by sharp cutting weapon like knife and in his cross-examination he has stated that a person who has suffered such injuries may remaIn conscious. There was never any doubt about the prosecution case. 28. The prosecution has sought aid of section 34 of the Indian Penal Code and a separate charge under section 120B of the Indian Penal Code was also framed against both the accused. There was never any doubt about the prosecution case. 28. The prosecution has sought aid of section 34 of the Indian Penal Code and a separate charge under section 120B of the Indian Penal Code was also framed against both the accused. Section 34 provides that when a criminal act is done by several persons in furtherance of the common intention each of such persons is liable for that act in the same manner as if it were done by him alone. In “Mahbub Shah Vs. Emperor” AIR 1945 PC 118 the Judicial Committee has pointed out that to invoke the aid of section 34 of the Indian Penal Code it must be shown that the criminal act complained against was done by one of the accused persons In furtherance of the common intention of all. The manner of occurrence and role played by an accused are important factors to ascertain the intention. It is difficult to gather direct evidence to prove the intention of a person and therefore in most cases intention of the accused has to be gathered from his acts and conduct as also from the other relevant circumstances of the case. The question with regard to the nature of offence, therefore, has to be determined on the facts and in the circumstances of the case. The participation of Sangram Mundari in the occurrence IS a foregone conclusion. By holding Madhusudan Mundri he has ensured fatal blows over his abdominal area and therefore he must be imputed with the knowledge that Madhusudan Mundri would be killed. In "Bhanuad Mepa Dana and Anr. v. The State of Bombay” AIR 1960 SC 289 the Hon'ble Supreme Court has observed that the principle which section 34 of the Indian Penal Code embodies is participation in action with the common intention of committing a crime and once such participation is established section 34 is at once attracted. In “Israr v. State of U.P.” (2005) 9 SCC 616 the accused who was holding the victim and restraining his movements enabling the co-accused to inflict knife blows causing his death was held to share common intention to cause death. There was a pre-plan, the accused waylaid Madhusudan Mundri and attacked him. We are of the opinion that Sangram Mundari was as equally liable as Ram Ratan Mundari for killing three persons. 29. There was a pre-plan, the accused waylaid Madhusudan Mundri and attacked him. We are of the opinion that Sangram Mundari was as equally liable as Ram Ratan Mundari for killing three persons. 29. For the aforesaid reasons, we conclude that the charges against the appellants were proved beyond doubt and there is no ground to interfere with judgment of their conviction passed in Sessions Trial No.170 of 2008. 30. In the result, Criminal Appeal (DB) No. 341 of 2010 is dismissed. 31. Let a copy of the judgment be transmitted to the Court concerned and the concerned jail superintendent through 'Fax'. 32. Let the lower Court records be sent to the Court concerned forthwith.