JUDGMENT : Subhash Chand, J. The instant criminal appeal is preferred on behalf of the appellants namely, Kapildeo Mandal @ Kapil Mandal @ Kapil @ Tulsi Mandal and Sanjay Paswan @ Sanju Paswan against the judgment of conviction dated 3rd April 2017 and the order of sentence dated 4th April 2017 passed by the learned Additional Sessions Judge-III, Rajmahal in Sessions Case No. 240 of 2011 whereby the accused namely, Subesh Mandal was acquitted while the accused/appellants namely, Kapildeo Mandal and Sanjay Paswan were convicted under sections 302 r/w 34, 120 (B) of the Indian Penal Code (in short, IPC) and 27 of Arms Act. 2. The brief facts of the prosecution case are that the informant (Shankar Mandal) gave the written information with the police station concerned with these allegations that on 23rd March 2011 at about 6 O' clock of evening Kapildeo Mandal @ Kapil Mandal alongwith one another young man came to his house. He had come to his house at 7 O' clock from his agricultural field. Kapildeo Mandal used to come to his house. After gossiping in the night at 10:30 pm he, Kapildeo Mandal and also his aide to whom he was addressing Sanjay Paswan all took food and he took them to Panchayat Bhawan to sleep in the night. In the mid way between his house and Panchayat Bhawan, Kapildeo Mandal shot bullets all of a sudden 4 to 5 times and Sanjay Paswan also shot bullets twice. These bullets hit on his shoulder, abdomen, waist, thigh and leg etc. He fell down at the place of occurrence and on raising alarm and hearing the sound of the bullets both the accused persons fled away. Thereafter, some persons of the locality and his family members carried him to Sadar Hospital, Sahibganj. This occurrence was done under a criminal conspiracy by both these accused persons with Subesh Mandal. One and two months ago Subesh Mandal had called him over his mobile phone and asked him either not to give evidence in a murder case against him or he would the same in his favour. He was also familiar with Kapildeo Mandal who was brother in relation of Subesh Mandal. With intent to commit murder of him they had open fired upon him. He was also familiar with Kapildeo Mandal who was brother in relation of Subesh Mandal. With intent to commit murder of him they had open fired upon him. The written information of this occurrence was given by victim orally to the police station concerned which was reduced into writing by the police officer of Rajmahal Police Station and the thumb impression of the victim was taken thereof. On this written information, Rajmahal PS case No. 71 of 2011 was registered under sections 120 (B), 307 r/w 34 of IPC and 27 of Arms Act against the accused Kapildeo Mandal, Sanjay Paswan and Subesh Mandal. During treatment the informant/victim died and section 302 of IPC was added. 3. The IO after having concluded the investigation filed the charge-sheet against all the three accused persons for the offence under sections 120 (B), 307 r/w 34, 302 of IPC and 27 of Arms Act with the Court of the learned Magistrate concerned. 4. The learned Magistrate concerned took cognizance on the charge-sheet and the case being exclusively triable by the Court of Sessions, the accused persons were committed before the Court of the learned Sessions Judge, Rajmahal for trial and the learned Sessions Judge transferred the same to the learned Additional Sessions Judge-III, Rajmahal for trial. The trial Court framed charge against the accused persons under sections 307, 302 r/w 34, 120 (B) of IPC and 27 of Arms Act. 5. On behalf of prosecution to prove the charge against all the accused persons in oral evidence examined PW1 Tulsi Karmkar, PW2 Subhash Mandal, PW3 Bina Devi @ Bino Devi, PW4 Praveen Kumar @ Praveen Kumar Mandal, PW5 Dr. Ranvijay Kumar, PW6 Dr. Sandeep Prasad Lal and PW7 Dr. Ajay Kumar, IO, Police Inspector. 6. In documentary evidence adduced injury report of Shankar Mandal Exhibit-1, postmortem report of deceased Shankar Mandal Exhibit-2. 7. The statement of accused Subesh Mandal, Kapildeo Mandal and Sanjay Paswan were recorded under section 313 of Cr.PC. The accused Subesh Mandal denied incriminating circumstances in evidence against him and stated that he is innocent and had been languishing in jail since 2010. The accused Kapildeo Mandal and Sanjay Paswan both denied the incriminating circumstances in evidence against them and stated that they were innocent. 8. The accused Subesh Mandal denied incriminating circumstances in evidence against him and stated that he is innocent and had been languishing in jail since 2010. The accused Kapildeo Mandal and Sanjay Paswan both denied the incriminating circumstances in evidence against them and stated that they were innocent. 8. On behalf of accused persons in defence evidence adduced the certified copy of the FIR of Ranga PS Case No. 93 of 2012 dated 5th December 2012 Exhibit-A, certified copy of FIR of Ranga PS Case No. 28 of 2013 dated 20th April 2013 Exhibit-B, copy of the order sheet Exhibit-C, certified copy of the FIR of Rajmahal PS Case No. 72 of 2008 Exhibit-D and police report under section 173 of Cr.PC Exhibit-E. 9. The learned trial Court after hearing the rival submission of the learned counsel for both the parties and after having gone through the material available on records has passed the judgment of conviction against the appellants Kapildeo Mandal and Sanjay Paswan vide order dated 3.4.2017 under sections 302 r/w 34, 120 (B) of IPC and section 27 of Arms Act and sentenced them vide order dated 4.4.2017 imprisonment for life with fine of Rs.10,000/-(ten thousand) each in default of payment of fine RI for one year under sections 302 r/w 34 and 120 (B) and fine of Rs.5,000/-(five thousand) each, in default of payment of fine RI for six months for the offence under section 27 of Arms Act. 10. Aggrieved from the impugned judgment of conviction and sentence, this criminal appeal is preferred on behalf of appellants/convicts Kapildeo Mandal and Sanjay Paswan on the grounds that impugned judgment of conviction and sentence passed by the learned trial Court was not in proper prospective and same is based on wrong appreciation of the evidence. The impugned judgment is based on perverse findings of law and fact. There is no independent eye witness of the occurrence. PW3 is not the eye witness as PW4 son of deceased has stated that her mother was giving food to the children and the appellants had gone out of the house after having meal. PW5 Doctor who treated the deceased first time has stated that no charring around the any of the entry wounds was found. It appeared that the bullets were fired from the long distance. PW5 Doctor who treated the deceased first time has stated that no charring around the any of the entry wounds was found. It appeared that the bullets were fired from the long distance. The allegations made in the FIR that the accused persons were also going together with the deceased and suddenly fired upon deceased belies the prosecution story. In the inquest report no FIR number is mentioned which creates doubt on the prosecution case. PW6 has stated in para-25 of the cross-examination that injuries sustained by the deceased shows that he was not in a position to speak. Keeping in view the nature of injuries and number of injuries on the body of the deceased it cannot be believed that he would leave a wide detail in regard to the occurrence in the FIR in injured condition. The learned Court below has failed to appreciate the contradiction in the statement of PW5 doctor who prepared an injury report and PW6 doctor who conducted the postmortem. In view of these grounds prayed to quash the impugned judgment of conviction dated 3rd April 2017 and sentence dated 4th April 2017. 11. We have heard the learned counsel for the appellants and the learned APP on behalf of the State and perused the materials available on records and also scrutinized the impugned judgment passed by the learned Court below. 12. In order to decide that propriety and legality of the impugned judgment of conviction and sentence the evidence adduced on behalf of the prosecutions to prove the case is to be reappreciated and scrutinized which is reproduced hereinbelow: PW1 Tulsi Karmkar in his examination-in-chief says that the occurrence was of one year ago from the day when he was examined. It was 10 O' clock of night. He had come from the agricultural field and after having meal slept. The brother of Shankar Mandal namely Vishnu had come to call him to his house. He also came to the road alongwith Vishnu and saw Shankar Mandal fallen on the road. He was not speaking and was in injured condition on account of bullet injuries. He is not aware who and how had opened fired and in what way. He could not identify the accused persons. This witness in cross-examination says when he reached alongwith Vishnu at the place of occurrence he saw Shankar Mandal in unconscious condition. He was not speaking and was in injured condition on account of bullet injuries. He is not aware who and how had opened fired and in what way. He could not identify the accused persons. This witness in cross-examination says when he reached alongwith Vishnu at the place of occurrence he saw Shankar Mandal in unconscious condition. He is not aware who had inflected injuries to Shankar Mandal. PW2 Subhash Mandal in his examination-in-chief says that at the time of occurrence he was sleeping in his house. Having heard the noise he came to the place of occurrence and saw Shankar Mandal who was being boarded in injured condition in the Jeep. He is not aware how Shankar Mandal had sustained injuries. This witness was declared hostile by the prosecution and in cross-examination this witness denied the statement under section 161 of Cr.PC given to the police officer. In cross-examination by the defence this witness says when the injured was being carried for hospital by the villagers he is not aware whether injured was conscious or not. He left the injured at the hospital. PW3 Bina Devi @ Bino Devi in her examination-in-chief says that the occurrence was 5 years ago. On that day she was at her house. Kapildeo Mandal alongwith the boy who was also of the very village came to her house. She had given some food to her husband and also to that boy. Kapildeo Mandal and another boy were taken by her husband to Panchayat Bhawan for sleeping. Kapildeo Mandal and another boy shot bullet injury to her husband. She hearing alarms, came out and saw that Kapildeo Mandal and another boy had fled away. She took her husband to Bhagalpur for treatment where in the mid way he died. She identified the accused Kapildeo Mandal and Sanjay Paswan in the dock and stated that she is not aware why this occurrence took place. In cross-examination this witness says her husband was injured and he was taken to Bhagalpur hospital and he gave the information to the police in regard to the occurrence. The police had come immediately after the occurrence. The Panchayat Bhawan was at some distance from her house. She did not accompany her husband to Bhagalpur Hospital. She had come to know that her husband has given the information in regard to the occurrence to the police. The police had come immediately after the occurrence. The Panchayat Bhawan was at some distance from her house. She did not accompany her husband to Bhagalpur Hospital. She had come to know that her husband has given the information in regard to the occurrence to the police. Subesh Mandal was in jail before the murder of her husband. The accused persons had also taken the bed and bed-sheet etc. in order to sleep in the Panchayat Bhawan from her house. Her husband was wearing lungi at that time. Her husband never told to her any enmity with the accused persons. It is wrong to say that some unknown persons had inflicted injuries to her husband and on account of enmity has falsely implicated to the accused persons. She had seen the dead body of her husband who sustained injury on waist, stomach, legs etc. PW4 Praveen Kumar @ Praveen Kumar Mandal in his examination-in-chief says at the time of occurrence he was at his house. Kapildeo Mandal and another boy came to his house. He had identified the accused Sanjay Paswan and stated that he had come with Kapildeo Mandal to his house at the night of occurrence. His father also served them meal and thereafter both said they had to sleep on which his father took them to the Panchayat Bhawan to sleep there. The bed and bed-sheet were also taken by them and these persons shot bullet to his father. His father sustained injuries on the stomach, legs etc. His father was taken to Bhagalpur hospital where his father died. This witness identified both the accused persons in the dock. In course of cross-examination this witness says on the date of occurrence he was at this house. It is wrong to say that he was at Hazaribagh. The police had also come after the occurrence and his father's cloth was wet with blood at that time. His uncle Brahmdeo and his brother accompanied to his father to hospital. He was taken to hospital by the Commander Jeep which was taken on hire. At that time when his father was being carried he was in conscious condition. Police had interrogated to his father in his presence. What was reduced in the writing he is not aware. He has no knowledge what was written in the FIR. PW5 Dr. He was taken to hospital by the Commander Jeep which was taken on hire. At that time when his father was being carried he was in conscious condition. Police had interrogated to his father in his presence. What was reduced in the writing he is not aware. He has no knowledge what was written in the FIR. PW5 Dr. Ranvijay Kumar in his examination-in-chief says that on 24th March 2011 he was posted at Sadar Hospital, Sahibganj as a Medical Officer. He examined the injuries of Shankar Mandal on 24th March 2011 and found following injuries: (i) Entry wound of 2inch diameter with inverted margin lateral to right clivacial, deep into the chest cavity. (ii) Entry wound of 1inch diameter in front of left leg with inverted margin. (iii) Exit wound of ½ inch diameter with everted margin at left leg. (iv) Entry wound, two in number with 1inch diameter of each with inverted margin located at the middle of right hank of abdomen. (v) Entry wound one inch diameter in front of left thigh with inverted margin. (vi) Exit wound ½ inch diameter with everted margin at the back of left thigh. The age of injury was within 6 hours. Injury report is in handwriting and signature marked Exhibit-1. In cross-examination this witness says he examined injured on police requisition. In present case he has not taken the history of the injuries from the injured person. Again this witness says he has taken history of injury from the patient but he has not mentioned in the injury report. He has not found any charring around any of the entry wounds. If the bullet is fired from the long distance then there will be no charring. Charring will be caused if the bullet is fired from the distance less than 5 to 6 feets. Now presently he cannot recall the condition of patient at the time of examination. The patient was able to speak at the examination of injuries. PW6 Dr. Sandeep Prasad Lal in his examination-in-chief says that on 24th March 2011 he was posted as Assistant Professor in Jawahar Lal Nehru Medical College, Bhagalpur in Department of Forensic, Medicine and Toxicology. Now presently he cannot recall the condition of patient at the time of examination. The patient was able to speak at the examination of injuries. PW6 Dr. Sandeep Prasad Lal in his examination-in-chief says that on 24th March 2011 he was posted as Assistant Professor in Jawahar Lal Nehru Medical College, Bhagalpur in Department of Forensic, Medicine and Toxicology. He conducted the postmortem on the dead body of Shankar Mandal there were following antemortem injuries: (i) One wound of entry with inverted and burnt margin of size ½ inch x ½ inch situated over right side front chest 2 inch below right clavicle (mid part). On dissection projectile found to come out through wound of exit size 1 inch x 1 inch situated over right side back 6 inch lateral to mid vertebral line. (ii) One wound of entry with inverted and burnt margin of size ½ inch x ½ inch situated over right side back. 4 inch lateral to mid vertebral line at the level of D8 vertebra. On Dissection projectile found to come out, through an exit wound with everted margin of size 1 inch x 1 inch situated over left side front abdomen at the level of umbilicus. (2) On Dissection right lung diaphragm/small intestine found perforated and there was blood and blood clot in chest and abdominal cavity. (iii) One wound of entry with inverted and burnt margin of size ½ inch x ½ inch situated over front of left thigh. Projectile found to penetrate muscle came out through exit wound of 1 inch x ½ inch size, situated over calf muscles of left leg. (3) Opinion-Above noted all injuries were antemortem and caused by fire arm weapon, dangerous and grievous in nature. (4) Cause of Death, hemorrhage and shock. (5) Time since death 3 to 12 hrs. The postmortem report is in handwriting and signature marked Exhibit-2. In cross-examination this witness says since there was no FIR number in the inquest report, therefore, he has not mentioned the same in postmortem report. He has found three bullets wounds only. It was not true that the dead body of Shankar Mandal was having five bullets wounds. On dissection he did not found any bullets. After such a type of injury deceased may faint on the spot. He cannot say that after faint the injured would have regain senses or not. He has found three bullets wounds only. It was not true that the dead body of Shankar Mandal was having five bullets wounds. On dissection he did not found any bullets. After such a type of injury deceased may faint on the spot. He cannot say that after faint the injured would have regain senses or not. In such type of injuries the person may or may not speak but in such cases it is not possible for any sensible speech and again says that it is not medically possible. PW7-Investigating Officer Dr. Ajay Kumar in his examination-in-chief says that he took over the investigation of this case crime on the formal FIR bears his signature which identified marks Exhibit-3. The whole of the fardbeyan is in his handwriting and signature which is marked Exhibit-4 and involvement of the fardbeyan is in his handwriting and signature also marked Exhibit-5. During investigation, he recorded statement of Bino Devi, Praveen Kumar, Subhash Mandal and Tulsi Karmkar who support the prosecution story. During investigation injured died and took permission to add section 302 of IPC. Subhash Mandal has told to him that on 23rd April 2011 in the evening Kapildeo Mandal and his friend Sanjay Paswan came to house of Shankar Mandal. Both had taken food and after taking bed went to sleep at Panchayat Bhawan. In between the house of Shankar Mandal and Panchayat Bhawan at the triangle both had opened fire to Shankar Mandal. On hearing his screaming he and another persons reached at the place of occurrence. Subhash Mandal has told to him that Kapildeo Mandal and Sanjay Paswan had shot Shankar Mandal. He received the injury report and postmortem report of deceased and file charge-sheet. In cross-examination this witness says that he was followings injured Shankar Mandal he took his injury report and also recorded his fardbeyan and he issued injury requisition to the doctor and fardbeyan prepared by him simultaneously. Doctor was also present there. Doctor did not give certificate in regard to condition of Shankar Mandal. It is wrong to say that Shankar Mandal was unconscious and had not given such fardbeyan and his thumb impression was taken on the blank paper and thereafter the fake fardbeyan was prepared. At the fake fardbeyan he took the thumb impression of injured. On the fardbeyan he did not take the signature or thumb impression of an independent person. It is wrong to say that Shankar Mandal was unconscious and had not given such fardbeyan and his thumb impression was taken on the blank paper and thereafter the fake fardbeyan was prepared. At the fake fardbeyan he took the thumb impression of injured. On the fardbeyan he did not take the signature or thumb impression of an independent person. In the injury requisition paper the time is not mentioned and the doctor issued report at 1:00 am on 24th March 2011. 13. First Information Report was lodged on the basis of the fardbeyan given by the deceased himself, while he was in injured condition. In the fardbeyan given by the injured to the police officer, who has proved the fardbeyan, was examined as PW7 Dr. Ajay Kumar. This witness Dr. Ajay Kumar says that the injured has orally stated to him with regard to the occurrence and whatever he told orally to him he reduced the same in writing in his own way and after having written the same, he had also read over and explained the contents of the fardbeyan to the injured, thereafter, giving nod by the injured, he took his thumb impression on the written information, which was reduced by the police officer himself, PW7 Dr. Ajay Kumar. The contents of this written information of the fardbeyan of Shankar Mandal is also proved by PW7 Dr. Ajay Kumar as Exhibit-5. After death of injured, this fardbeyan of injured becomes admissible in evidence, as dying declaration, under section 32 of the Evidence Act. 14. We have to scrutinize the testimony of PW7 Dr. Ajay Kumar, who reduced the oral fardbeyan of injured into writing and also the testimony of PW5 Dr. Ranvijay Kumar, who prepared the injury report of injured Shankar Mandal. 15. PW7 Dr. Ajay Kumar says that first of all he got the injured medically examined by the PW5 Dr. Ranvijay Kumar, after having given him police requisition. On his requisition Dr. Ranvijay Kumar examined the injuries of injured Shankar Mandal. This witness also says that simultaneously the injured has given the oral statement to him in regard to the occurrence, which he reduced the same into writing and thereafter he read over and explained the same to the injured and put his signature thereof. He also says that the injured was in conscious condition and he was able to speak. 16. PW5 Dr. He also says that the injured was in conscious condition and he was able to speak. 16. PW5 Dr. Ranvijay Kumar, who examined the injured Shankar Mandal in injured condition and he found following six injuries on the dead body of Shankar Mandal which are given hereinbelow: (i) Entry wound of 2inch diameter with inverted margin lateral to right clivacial, deep into the chest cavity. (ii) Entry wound of 1inch diameter in front of left leg with inverted margin. (iii) Exit wound of ½ inch diameter with everted margin at left leg. (iv) Entry wound, two in number with 1inch diameter of each with inverted margin located at the middle of right hank of abdomen. (v) Entry wound one inch diameter in front of left thigh with inverted margin. (vi) Exit wound ½ inch diameter with everted margin at the back of left thigh. 17. This witness Dr. Ranvijay Kumar also says that injured Shankar Mandal was able to speak. He denies the suggestion given to him by the defence counsel that it is wrong to say that at the time of examination of injuries, the injured Shankar Mandal was not able to speak or was unconscious. 18. From the testimony of PW7 Dr. Ajay Kumar, Police Officer and also PW5 Dr. Ranvijay Kumar, it is proved that injured Shankar Mandal has given his fardbeyan, which was reduced into writing by PW7 Dr. Ajay Kumar and when his injury report was prepared by PW5 Dr. Ranvijay Kumar, the injured Shankar Mandal was in conscious condition and was able to speak. 18.1 The injury, which the deceased Shankar Mandal had sustained, from perusal of the injury report, it is found none of the injury is affecting the brain or heart which could prevent him to speak. 18.2 PW5 Dr. Ranvijay Kumar, who has conducted the injury report and PW7 Dr. Ajay Kumar the investigating officer both are the eye witness in regard to the conscious condition of injured Shankar Mandal, while in injured condition and he gave the oral fardbeyan to PW7 Dr. Ajay Kumar, who reduced the same in writing. 18.3. 18.2 PW5 Dr. Ranvijay Kumar, who has conducted the injury report and PW7 Dr. Ajay Kumar the investigating officer both are the eye witness in regard to the conscious condition of injured Shankar Mandal, while in injured condition and he gave the oral fardbeyan to PW7 Dr. Ajay Kumar, who reduced the same in writing. 18.3. There is no reason for explanation on behalf of the defence that why the police officer would falsely implicate the appellants/convicts in this case, who on the basis of the oral statement of Shankar Mandal, while he was in injured condition, reduced his fardbeyan in writing in his own words, on the basis of which, the formal FIR was prepared. 19. The learned counsel for the appellants has submitted that keeping in view the six entry and exit wounds of bullet on the body of deceased, it cannot be expected that injured Shankar Mandal was in conscious condition and was in fit state of mind to give the statement. Learned counsel for the appellants has also stated that PW6 Dr. Sandeep Prasad Lal, who conducted the postmortem also says that if any person sustains such kind of injuries, which were found ante-mortem in nature on the body of deceased, it may be opined that the deceased would not be in conscious condition. This opinion of PW6 Dr. Sandeep Prasad Lal is based only on the hypothesis therefore same cannot prevail upon the testimony of PW5 Dr. Ranvijay Kumar, who specifically says that when he examined the injuries of injured Shankar Mandal and prepared the injury report of the same, he was also able to speak. As such, the doctor who examined the injuries of Shankar Mandal, while he was alive specifically says that Shankar Mandal was in conscious condition and was able to speak, therefore, it leaves no doubt that Shankar Mandal was in conscious condition at the time of conducting the injury report and also reducing the oral fardbeyan of Shankar Mandal, which was reduced into writing by PW7 Dr. Ajay Kumar. 20. Therefore, this oral fardbeyan of injured Shankar Mandal which was reduced into writing by PW7 Dr. Ajay Kumar will be admissible in evidence under section 32 of Evidence Act, as a dying declaration after his death who died after some hours. 21. Ajay Kumar. 20. Therefore, this oral fardbeyan of injured Shankar Mandal which was reduced into writing by PW7 Dr. Ajay Kumar will be admissible in evidence under section 32 of Evidence Act, as a dying declaration after his death who died after some hours. 21. The Hon'ble Apex Court in the case of “Dharampal vs. State of UP” reported in (2008) 17 SCC 337 has held that the FIR lodged by deceased would attain the character and legal status of dying declaration, if the victim dies before his or her examination in the Court. The Hon'ble Apex Court in paragraph nos.7 and 8 has held as under: “7. The report was admissible under section 32 of the Evidence Act as a dying declaration of the deceased Raj Pal the names of the accused and important futures of the case have been mentioned therein. The report contain truthful version of the incident as narrated by Raj Pal as to cause of death. 8. The version given in the FIR found corroboration from the testimony of eye witnesses and medical evidence on record.” 22. The Hon'ble Apex Court in the case of “Suraj Dev Oza and anothers vs. State of Bihar” reported in AIR 1979 SC 1505 at paragraph nos. 2 and 3 has held as under: “2. The central evidence in this case consist of dying declaration made by deceased before the sub inspector which has been treated as FIR the dying declaration was made within a hour of assault when the deceased was fully conscious. Both the courts below have relied upon the dying declaration and have held that the dying declaration is proved. All the appellants are named in dying declaration and even the witness no.1 and 3 have been mentioned clearly as having seen the occurrence, in such dying declaration. These witnesses have been believed by the court below. 3. Mr. Mukherjee appearing in support of the appeal submitted that having regard to the large number of injuries sustained by the deceased, he would not be in a position to speak or give dying declaration. We have ourselves examined injuries and we find that there was no injury which may have affected the brain or heart and only serious injury are on the abdomen which will not make the deceased in conscious immediately.” 23. We have ourselves examined injuries and we find that there was no injury which may have affected the brain or heart and only serious injury are on the abdomen which will not make the deceased in conscious immediately.” 23. The Hon'ble Apex Court has held in “Nanchau Ram and others vs. State of Madhya Pradesh” reported in AIR (1988) SC 912 that wherein eye witnesses said that the deceased was in fit and conscious state of mind to make dying declaration, the medical opinion cannot prevail. 24. The Hon'ble Apex Court in the case of “Luxman vs. State of Maharashtra” reported in (2002) 6 SCC 710 has held that the mere absence of doctor's certification as to fitness of declarant's state of mind would not ipso facto render the dying declaration unacceptable. Evidentiary value of such a dying declaration depends upon the facts and circumstances of each case. 25. The oral fardbeyan of Shankar Mandal, which was reduced into writing, after his death becomes admissible, as a dying declaration, its content is also corroborated with the testimony of PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal who are respectively the wife and son of deceased Shankar Mandal. PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal both are the witness of last seen. PW3 Bina Devi @ Bino Devi in her statement says that on the day of occurrence Kapildeo Mandal alongwith one boy to whom who was addressing as Sanjay Paswan had come to her house and they asked to take food, therefore, the food was served to them and after having taken food, Kapildeo Mandal and his aide both asked her husband to sleep. Her husband took them to Panchayat Bhawan alongwith bichhavan, which was at some distance from her house. As her husband left the house alongwith Kapildeo Mandal and his aide Sanjay Paswan the hullah was heard by her and she reached at the place of occurrence and found her husband lying in pool of blood in injured condition. 26. PW4 Praveen Kumar @ Praveen Kumar Mandal is the son of deceased. This witness also says that on the day of occurrence, the accused Kapildeo Mandal alongwith his aide to whom he was addressing as Sanjay Paswan had come to his house to his father. 26. PW4 Praveen Kumar @ Praveen Kumar Mandal is the son of deceased. This witness also says that on the day of occurrence, the accused Kapildeo Mandal alongwith his aide to whom he was addressing as Sanjay Paswan had come to his house to his father. Kapildeo Mandal and Sanjay Paswan took food and after taking food they asked to sleep. His father took them to the Panchayat Bhawan to sleep there, but, before they had reached to Panchayat Bhawan, in the midway both the accused persons shot bullet to his father. He also reached at the place of occurrence having heard the hullah his father was injured and he was in conscious condition. He was taken to hospital by the persons of the village having boarded him in jeep. Therefore, PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal both are the witness of the last seen of deceased with the accused persons and from their testimony, it is proved that the deceased had left the house with the accused persons at 10:30 of night on 23rd March 2011 and after some time the screaming of Shankar Mandal was heard by them and they found Shankar Mandal in pool of blood, who had sustained the bullet injuries. 27. The testimony of PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal is also corroborated with the testimony of PW2 Subhash Mandal. This witness in his testimony says that at the time of occurrence, he was sleeping in his house having heard the noise, he reached the place of occurrence and found Shankar Mandal to be boarded in a jeep in injured condition. This witness says that Shankar Mandal was boarded in injured condition in a jeep by the villagers. This witness was, however, declared hostile and in cross-examination, he says that he is not aware whether injured was conscious or not but he had left the injured at the hospital. 28. This witness says that Shankar Mandal was boarded in injured condition in a jeep by the villagers. This witness was, however, declared hostile and in cross-examination, he says that he is not aware whether injured was conscious or not but he had left the injured at the hospital. 28. The deceased had left his house with both the accused Kapildeo Mandal and Sanjay Paswan at 10:30 of night on 23rd March 2011 for Panchayat Bhawan to get them sleep therein, but in the midway, he was shot by the accused persons, as per contents of the fardbeyan, which was given by injured himself orally to the police officer which was subsequently reduced into writing and proved by PW7 Dr. Ajay Kumar as Exhibit-5. The time gap between the last seen of deceased and the accused persons and the time of taking place of occurrence and also thereafter the death of injured Shankar Mandal is so less, which conclusively indicates that the author of the crime are only Kapildeo Mandal and Sanjay Paswan who are last seen with the deceased by PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal respectively the wife and son of deceased. There is nothing on record to the contrary on the part of the accused persons how Shankar Mandal sustained bullet injuries more so both of them had accompanied him and left the house of deceased for Panchayat Bhawan to sleep therein. 29. The Hon'ble Apex Court in “Harivadan Babubhai Patel vs. State of Gujarat” reported in (2013) 7 SCC 45 has held that the time gap between the last seen evidence and the death where the medical evidence also indicates the injury to be four days back. There was long gap between the last seen and recovery of the dead body melts into insignificance. 30. The Hon'ble Apex Court also held in the case of “State of Goa vs. Pandurang Mohite” reported in (2008) 16 SCC 714 that the time gap between the last seen alive and recovery of the dead body must be so small that the possibility of any person other than the accused, being the author of the crime becomes impossible. 31. The Hon'ble Apex Court also held in the case of “State of Goa vs. Pandurang Mohite” reported in (2008) 16 SCC 714 that the time gap between the last seen alive and recovery of the dead body must be so small that the possibility of any person other than the accused, being the author of the crime becomes impossible. 31. The Hon'ble Apex Court in the case of “Ramreddy Rajesh Khanna Reddy and Another vs. State of A.P.” reported in (2006) 10 SCC 172 has held that the last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. 32. Therefore this last-seen-theory comes into play in view of the settled propositions of law by the Hon'ble Apex Court in this case, as the deceased had left the house alongwith accused Kapildeo Mandal and Sanjay Paswan at 11 O' clock of night after having taken food at the house of deceased to sleep at the Panchayat Bhawan and in the midway, between the house of deceased and the Panchayat Bhawan, the deceased was shot bullet injuries and after hearing the sound of bullets and screaming of injured, PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal also reached there and found Shankar Mandal in injured condition. Even PW2 Subhash Mandal who is the independent witness also found that Shankar Mandal in injured condition, was being boarded on the Jeep for the hospital by the villagers. On reaching hospital his injuries were medically examined by PW5 Dr. Ranvijay Kumar on 24th March 2011 at 1:00 am. From the injury report Exhibit-1, it is found that the time of injuries is given within 6 hours from the time of examination and thereafter this injured Shankar Mandal died whose postmortem was conducted by PW6 Dr. Sandeep Prasad Lal at 1:30 on 24th March 2011, as such there is nothing on behalf of the appellants in defence evidence, how Shankar Mandal had sustained bullet injury more so he was in their company at the fateful night. 33. Sandeep Prasad Lal at 1:30 on 24th March 2011, as such there is nothing on behalf of the appellants in defence evidence, how Shankar Mandal had sustained bullet injury more so he was in their company at the fateful night. 33. The statement of both the accused persons, under section 313 Cr.P.C., was recorded though they denied the incriminating circumstances in evidence against them, but they did not say in defence that they were not with the deceased on the fateful night. Even no suggestion is given to any of the witness PW3 Bina Devi @ Bino Devi and PW4 Praveen Kumar @ Praveen Kumar Mandal who are the last seen witnesses that they had not gone to the house of deceased and had not taken food and did not leave the house alongwith deceased for Panchayat Bhawan. Even no defence evidence was adduced on behalf of the accused persons to rebut that they were not at the fateful night with the deceased. 34. In view of the analysis of the evidence on record, we are of the considered view that the prosecution has been successfully proved the charge against the appellants/convicts under section 302 r/w 34 IPC and the order of conviction and sentence passed by the learned trial Court by way of the impugned judgment needs no interference and, accordingly, this criminal appeal is deserved to be affirmed. 35. The appellants are in judicial custody, as such, they are directed to serve out their remaining sentence, passed by the learned Court below and the same, is hereby, affirmed by this Court. 36. Accordingly, Criminal Appeal (DB) No. 927 of 2017 is dismissed. 37. Let the lower Court records be sent back to the Court concerned alongwith copy of the judgment to ensure the compliance of this order. 38. Pending IAs, if any, stand disposed of. I agree