Criminal Appeal No. 62 of 2000 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK Criminal Appeal No.62 of 2000 An appeal from the judgment and order dated 01.12.1999 passed by the Sessions Judge, Sundargarh in Sessions Trial No.95 of 1995. --------------------- 1. Sundarmani Kalo 2. Rabindra Kalo ....... Appellants -Versus- State of Odisha ....... Respondent For Appellant: - Smt. Mandakini Panda Advocate For Respondent: - Mr. Sarat Ch. Pradhan Addl. Standing Counsel --------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO AND THE HONOURABLE MR. JUSTICE CHITTARANJAN DASH ------------------------------------------------------------------------ Date of Hearing and Judgment: 02.12.2025 ------------------------------------------------------------------------ By the Bench: The appellants Sundarmani Kalo and Rabindra Kalo faced trial in the Court of the learned Sessions Judge, Sundargarh in Sessions Trial No.95 of 1995 for the offence Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2025 17:50:57 Criminal Appeal No.62 of 2000 Page 1 of 32 punishable under section 302/34 of the Indian Penal Code (in short „I.P.C.‟) on the accusation that on 23.01.1995 at about 5.00 p.m. at Durgudi Dhipa, they committed murder of Sibanath Kalo (hereinafter „the deceased‟) in furtherance of their common intention. The learned trial Court, vide impugned judgment and order dated 01.12.1999, found both the appellants guilty of the offence charged and sentenced each of them to undergo rigorous imprisonment for life. Prosecution Case: 2. The prosecution case, as per the first information report (hereinafter „the F.I.R.‟) (Ext.1) lodged by P.W.2 Lochan Kalo before the Inspector in-charge of Sadar police station, Sundargarh on 23.01.1995, in short, is that he was the cousin brother of the deceased, who was serving as a teacher in a U.P. School at Thipapani. On 23.01.1995, the deceased had been to the school and while the informant (P.W.2) was in his house, he was informed by P.W.7 Purseth Dandasena that the deceased was lying near a bridge at Durgudi Dhipa in an injured condition. Getting such message from P.W.7, P.W.2 came to the spot where he found the deceased was lying by the side of the road with cut injuries on the head and also bleeding injuries on the Criminal Appeal No.62 of 2000 Page 2 of 32 left cheek. When he asked the deceased about the names of his assailants, the deceased disclosed before him that the co- villagers Sundar Kalo (appellant no.1) and Dhado @ Rabindra Kalo (appellant no.2) assaulted him by means of budia and lathi respectively. The deceased was shifted to Sundargarh Government Hospital, however the doctor declared him dead in the hospital. It is further stated in the F.I.R. that on 23.01.1995 at about 5.00 p.m., both the appellants assaulted the deceased by means of budia and lathi which resulted in his death. On receipt of the written report from P.W.2, P.W.20 Lokanath Pradhan, the Inspector in-charge attached to Sadar police station, Sundargarh registered Sundargarh Sadar P.S. Case No.09 dated 23.01.1995 under section 302/34 of the I.P.C. against both the appellants and he himself took up investigation of the case. During course of investigation, P.W.20 examined the informant (P.W.2), deputed constable to guard the dead body and left the police station, reached at the village Kanaktura and visited the spot in presence of the informant which was Manjermat-Kanaktura road situated near Durgudi Dhipa bridge and prepared the spot map (Ext.6). The I.O. also examined some witnesses in the village and on 24.01.1995, he held Criminal Appeal No.62 of 2000 Page 3 of 32 inquest over the dead body of the deceased at District Headquarters Hospital, Sundargarh in presence of the witnesses and prepared the inquest report (Ext.7) and thereafter, dispatched the dead body of the deceased through the constable for post mortem examination to the District Headquarters Hospital, Sundargarh. On 24.01.1995, the I.O. also seized blood stained earth, sample earth and blood stained stone from the spot as per seizure list Ext.9 and examined some witnesses on that day and on the next day and on 26.01.1995, he seized the wearing apparels of the deceased on being produced by the constable under seizure list Ext.10 and on the same day, he received the post mortem report and arrested the appellant no.1 Sundarmani Kalo and recorded his statement under section 27 of the Evidence Act and on the basis of such statement, in presence of the witnesses, the budia (axe) (M.O.I) was seized from the house of appellant no.1 as per seizure list Ext.2/2. The appellant no.1 also gave recovery of one lathi (M.O.II) from inside the jungle near the spot and the same was seized as per seizure list Ext.12. The cycle of the deceased was also seized by the I.O. as per seizure list Ext.13 being produced before him by one Dilip Kumar Kalo (P.W.4), who brought it from the spot to the village. The appellant no.2 Dhado @ Rabindra Kalo was arrested on 26.01.1995 and one check lungi was seized on being produced Criminal Appeal No.62 of 2000 Page 4 of 32 by appellant no.1 as per seizure list Ext.14 in presence of the witnesses and on 27.01.1995, both the appellants were sent to the doctor for their medical examination and also to collect the sample blood and nail clippings and then on the same day, both of them were forwarded to the Court. On 28.01.1995, the nail clippings of both the appellants and the sample blood, which were collected by the doctor, were seized as per seizure list Ext.16. The I.O. made a prayer before the learned S.D.J.M., Sundargarh on 30.01.1995 for recording of 164 Cr.P.C. statements of some witnesses and accordingly, the same was done. Some documents relating to land dispute between the parties were seized. All the seized articles were sent to R.F.S.L., Sambalpur for Chemical Examination through the learned S.D.J.M., Sundargarh and on completion of investigation, P.W.20 submitted charge sheet against both the appellants under sections 302/201/34 of I.P.C. Framing of Charges: 3. On submission of charge sheet, the case was committed to the Court of Session after complying due formalities. The learned trial Court framed charge against the appellants as aforesaid and since the appellants refuted the charges, pleaded not guilty and claimed to be tried, the sessions Criminal Appeal No.62 of 2000 Page 5 of 32 trial procedure was resorted to prosecute them and establish their guilt. Prosecution Witnesses, Exhibits and Material Objects: 4. During the course of trial, in order to prove its case, the prosecution has examined as many as twenty one witnesses. P.W.1 Dasamanti Kalo is the widow of the deceased. She stated that on the date of occurrence, when she was in her house, one Suresh came and informed her that the deceased was assaulted by the appellants while he was returning from the school. She further stated that when she came to the place of occurrence and found the deceased was lying on the ground, she gave water to him and then the deceased told that the appellants caused injury on his person by means of lathi and Tangia. She further stated that she along with others brought the deceased to District Headquarters Hospital, Sundargarh for treatment where the doctor after examination declared him to be dead. P.W.2 Lochan Kalo is the cousin brother of the deceased and the informant in the case. He stated about the oral dying declaration made by the deceased. P.W.3 Okilo Kalo, P.W.5 Md. Rafique Khan, P.W.7 Purseth Dandasena, P.W.8 Tinu Naik and P.W.11 Tirtha Pradhan Criminal Appeal No.62 of 2000 Page 6 of 32 are the co-villagers of the deceased and the appellants and they are the witnesses to the oral dying declaration of the deceased and they supported the prosecution case. P.W.4 Dilip Kalo is the son of the deceased and he stated about the oral dying declaration of the deceased. P.W.6 Pabitra Kharkunar is a co-villager of the deceased and the appellants. He is an eye witness to the occurrence and supported the prosecution case. P.W.9 Pabitra Rana and P.W.10 Narayan Patel are the witnesses to the seizure but they did not support the prosecution case, for which they were declared hostile by the prosecution. P.W.12 Karna Pradhan and P.W.13 Pandaba Pradhan are witnesses to the seizure of lathi. P.W.14 Dr. Susil Kumar Das was working as Assistant Health Officer attached to District Headquarters Hospital, Sundargarh, who collected the blood sample and nail clippings of the appellants and after collection of the same, he handed over it to P.W.17, the accompanying police constable. He proved his report vide Ext.3. Criminal Appeal No.62 of 2000 Page 7 of 32 P.W.15 Dr. Rabinarayan Singh Bariha was working as Medical Officer, T.H.N. in District Headquarters Hospital, Sundargarh, who stated that he did not remember if any patient in the name of Shibnath Kalo (deceased) had come to casualty on 23.01.1995. He further stated that without referring the connected records, it was not possible on his part to say about the fact. P.W.16 Dr. Bidhu Bhusan Mohanty was working as Assistant Surgeon attached to District Headquarters Hospital, Sundargarh, who conducted post mortem examination over the dead body of the deceased and proved his report vide Ext.4. P.W.17 Gouranga Barua was the constable attached to Sadar police station, Sundargarh, who accompanied the appellants to the hospital for collection of their blood samples and nail clippings and after collection of the same, P.W.14 handed over it to him and he produced the same before P.W.20. P.W.18 Kusa Munda and P.W.19 Pabitra Naik are the eye witnesses to the occurrence but they did not support the prosecution case for which they were declared hostile by the prosecution. Criminal Appeal No.62 of 2000 Page 8 of 32 P.W.20 Lokanath Pradhan was working as the Inspector in-charge of Sadar police station, Sundargarh, who is the Investigating Officer of the case. P.W.21 Brundaban Naik was working as A.S.I. of Police of Sadar police station, Sundargarh, who had taken limited role in the investigation. The prosecution proved nineteen numbers of documents as exhibits. Ext.1 is the F.I.R., Ext.2/2 is the seizure list in respect of budia, Ext.3 is the report of P.W.14, Ext.4 is the post mortem report, Ext.5 is the command certificate, Ext.6 is the spot map, Ext.7 is the inquest report, Ext.8 is the dead body challan, Ext.9 is the seizure list in respect of blood stained earth, sample earth and blood stained stone, Ext.10 is the seizure list in respect of the wearing apparels of the deceased, Ext.11 is the statement of appellant no.1 recorded under section 27 of the Evidence Act, Ext.12 is the seizure list in respect of lathi, Ext.13 is the seizure list in respect of the cycle of the deceased, Ext.14 is the seizure list in respect of one check lungi of appellant no.1, Ext.15 is the seizure list in respect of one check lungi of appellant no.2, Ext.16 is the seizure list in respect of blood samples and nail clippings of the appellants, Ext.17 is the office copy of forwarding letter, Ext.18 is the chemical examination Criminal Appeal No.62 of 2000 Page 9 of 32 report and Ext.19 is the seizure list in respect of two undertakings relating to the settlement of earlier disputes between the deceased and the appellants. The prosecution also produced six numbers of material objects. M.O.I is the budia, M.O.II is the lathi, M.O.III is the check lungi of appellant no.1, M.O.IV is the check lungi of appellant no.2, M.O.V and M.O.VI are the letters of undertaking. Defence Plea: 5. The defence plea of the appellants was one of denial and it is pleaded that they have been falsely entangled in the case. Defence has neither examined any witness nor exhibited any document.
Legal Reasoning
Findings of the Trial Court: 6. The learned trial Court, after assessing the oral as well as documentary evidence on record and analyzing the evidence of the Medical Officer (P.W.16) came to the conclusion that the deceased died a homicidal death. The learned trial Court came to hold that two witnesses, who were supposed to be the eye witnesses to the occurrence i.e. P.W.18 and P.W.19 have not supported the prosecution case for which they were declared Criminal Appeal No.62 of 2000 Page 10 of 32 hostile by the prosecution. So far as the other witness i.e. P.W.6 is concerned, though he posed himself as an eye witness to the occurrence, but the learned trial Court came to the conclusion that he along with others after hearing the assault on the deceased came to the spot and found the deceased was lying in an injured condition and therefore, P.W.6 was also not accepted as an eye witness to the occurrence. However, considering the oral dying declaration made before the family members as well as the co-villagers, the learned trial Court came to the conclusion that the dying declaration can safely be relied upon. The learned trial Court also discussed about the leading to recovery of the weapons at the instance of appellant no.1 Sundarmani Kalo and came to hold that even though the witnesses have not disclosed the details of the statement given by appellant no.1 before the I.O., the same cannot be fatal to the prosecution and the report of the Chemical Examiner (Ext.18) indicated that lathi (M.O.II), which was recovered at the instance of appellant no.1 was stained with blood and therefore, such recovery coupled with the dying declaration made by the deceased before the villagers clearly brings home the complicity of appellant no.1 Sundarmani Kalo with the crime. The learned trial Court further held that when appellant no.1 had given recovery of the Tangia (M.O.I), it could not be ruled out that it was used in the commission of the Criminal Appeal No.62 of 2000 Page 11 of 32 crime. Accordingly, it was held that the dying declaration of the deceased coupled with the recovery of the weapons of offence i.e. M.O.I and M.O.II at the instance of appellant no.1, it can be said that the prosecution has been able to prove its case against both the appellants beyond all reasonable doubts. Though the prosecution placed reliance on two panchanamas i.e. M.O.V and M.O.VI, but the learned trial Court has held that no reliance can be placed on those documents to prove the motive on the part of the appellants. Ultimately, it was held that the prosecution has proved that the appellants are the authors of the crime and held them guilty under section 302/34 of I.P.C. Contentions of the Parties: 7.
Legal Reasoning
Smt. Mandakini Panda, learned counsel being engaged by the Orissa High Court Legal Service Committee for the appellant contended that since the learned trial Court has disbelieved the evidence of the eye witnesses i.e. P.Ws.6, 18 and 19, on the basis of the oral dying declaration, it should not have convicted the appellants. Learned counsel argued that from the evidence of the doctor (P.W.16), who conducted the post mortem examination, it appears that the deceased had sustained five injuries on the head, out of which, four are incised wounds and one is a lacerated wound and the doctor had also noticed Criminal Appeal No.62 of 2000 Page 12 of 32 that there was internal damage to the brain and opined the cause of death was due to hemorrhage and shock leading to coma due to injuries on the vital organs like spleen and compression of brain. Learned counsel further argued that in view of the assault on the head of the deceased, when there is no material on record that the deceased was in a fit state of mind to make the dying declaration, no reliance can be placed on the evidence of the witnesses, who have deposed that the deceased disclosed before them that both the appellants assaulted him. Learned counsel further argued that in this case, since two panchanamas have not been given any importance to by the learned trial Court and motive on the part of the appellants for assaulting the deceased has not been proved, therefore, it is very difficult to hold that the prosecution has proved the charge against the appellants beyond all reasonable doubts. Mr. Sarat Chandra Pradhan, learned Additional Standing Counsel, on the other hand, supported the impugned judgment and argued that even though no reliance has been placed on the evidence of the eye witnesses by the learned trial Court, but it appears that the oral dying declaration made not only before the family members but also before the co-villagers Criminal Appeal No.62 of 2000 Page 13 of 32 are consistent and no doubtful feature is there in the evidence of the witnesses, who have deposed relating to the dying declaration and their evidence also inspire confidence and when nothing has been brought out from the evidence of the doctor (P.W.16) that the deceased would not be mentally fit to make any dying declaration, it cannot be said that the learned trial Court was not justified in placing reliance on the dying declaration. Learned counsel further argued that the evidence of the dying declaration that the appellants assaulted the deceased by two different weapons is getting corroboration from the post mortem report (Ext.4) and the doctor (P.W.16) has categorically stated that four incised wounds could be possible by sharp cutting weapon and the lacerated wound could be possible by lathi and therefore, the impugned judgment and order of conviction should not be interfered with. Whether the deceased met with a homicidal death?: 8. Adverting to the contentions raised by the learned counsel for the respective parties, let us first examine the evidence available on record as to how far the prosecution has succeeded in proving that the deceased met with a homicidal death. Apart from the inquest report, which has been proved by the Investigating Officer (P.W.20) as Ext.7, the evidence of the Criminal Appeal No.62 of 2000 Page 14 of 32 doctor (P.W.16), Asst. Surgeon in District Headquarters Hospital, Sundargarh, who conducted post mortem examination over the dead body of the deceased is very relevant. According to P.W.16, he conducted post mortem examination over the dead body of the deceased on 24.01.1995 and noticed the following external injuries: “i) Incised wound of size 5 cm. x 1 cm. x bone deep present over left parieto-occipital region of head; ii) Incised wound of size 5 cm. x 1 cm. x bone deep present over left occipital region of head 1.5 cm. below the first wound; iii) Incised wound of size 4 cm. x 1 cm. x bone deep present over left occipital region of head 1 cm. below the second wound; iv) Incised wound of size 5 cm. x 1 cm. x bone deep present over left occipital region of head 2 cm. below the third wound; v) Contusion of 5 cm. in diameter over which a lacerated wound of size 1 cm. x 1 cm. x 1 cm. present on moral eminence of left side of cheek of face.” Criminal Appeal No.62 of 2000 Page 15 of 32 P.W.16 also noticed the following internal injuries: “(i) There was clot mixed blood present in subdural space at left occipital region of the brain, corresponding to external injuries on head on the left side; (ii) The spleen was lacerated on the lower border in zig zag manner (rupture) and was associated with large quantity of liquid and clotted blood.” P.W.16 opined that the all the injuries were ante mortem in nature and the same were sufficient in ordinary course of nature to cause death. He further opined that the cause of death was due to injuries to vital organs like spleen and compression of brain. The post mortem report has been proved by P.W.16 as Ext.4 and he has stated that external injury nos.(i) to (iv) are possible by sharp side of an axe. In the cross- examination, the defence has elicited from P.W.16 that no weapon of offence was produced before him by the I.O. for his examination and opinion and he has stated that external injury no.(v) could be caused by fall or dash and that particular injury was also alone sufficient for causing death. Nothing has been elicited in the cross-examination further to disbelieve the evidence of P.W.16 or the post mortem report finding as per Ext.4. Criminal Appeal No.62 of 2000 Page 16 of 32 The learned counsel for the appellant has also not challenged the homicidal death of the deceased. In view of such evidence on record, we are of the humble view that the learned trial Court has rightly came to the conclusion that the deceased met with a homicidal death. Analysis of the evidence of eye witnesses: 9. Coming to the evidence of the three eye witnesses, we find that P.W.18 Kusa Munda so also P.W.19 Pabitra Naik have not supported the prosecution case for which they were declared hostile by the prosecution. So far as P.W.6 Pabitra Kharkunar is concerned, even though in his examination in-chief, he has stated to have seen the appellant no.1 Sundarmani Kalo assaulting the deceased by means of budia (Tangia) (M.O.I) and appellant no.2 Rabindra Kalo assaulting the deceased by means of a lathi (M.O.II) and causing injuries on the person of the deceased and that he saw the incident while he was going to the house of his daughter and on seeing him and other persons, both the appellants fled away from the scene of occurrence towards jungle, but in the cross- examination, he had admitted that he did not state before the police to have seen the incident rather he has stated that by the Criminal Appeal No.62 of 2000 Page 17 of 32 time he reached the spot, a Government doctor of Megdega and P.W.7 and few others had already reached there. According to prosecution case, P.W.7 is a post-occurrence witness and if P.W.6 reached at the spot after P.W.7, he cannot be an eye witness to the occurrence and therefore, the learned trial Court has rightly not placed any reliance on the evidence of P.W.6 as an eye witness to the occurrence. Whether the evidence relating to dying declaration is acceptable?: 10. So far as the oral dying declaration is concerned, the same has been deposed to by P.Ws.1, 2, 3, 4, 7 & 8. P.W.1 Dasamanti Kalo, the widow of the deceased has stated that on the date of occurrence while she was in her house, one Suresh came and informed her that the deceased was assaulted by the appellants while he was returning from the school. She further stated that when she came to the place and found her husband lying on the ground, she gave water to him and the deceased was able to talk at that time and he told her that the appellants caused injuries on his person by means of lathi (M.O.II) and Tangia (M.O.I). She further stated that she along with others brought the deceased to District Headquarters Criminal Appeal No.62 of 2000 Page 18 of 32 Hospital, Sundargarh for treatment, where the doctor after examination declared her husband to be dead. In the cross- examination, she has stated that by the time she arrived at the spot, many persons had assembled there and from the spot, the deceased was brought to the house in a cot and from there, they brought the deceased in a trekker to District Headquarters Hospital, Sundargarh. Though suggestions have been given to P.W.1 that she had not given water to the deceased and that the deceased was not in sense by the time when she reached there and that she had not asked anything to the deceased and that the deceased had also not told her the names of his assailants, but the witness has denied such suggestions put forth by the learned defence counsel. Nothing has been brought in the cross- examination to disbelieve the evidence of P.W.1. P.W.2 Lochan Kalo is the cousin brother of the deceased and he has stated that he came to know from P.W.7 about the occurrence and came to the spot and after reaching at the spot, he asked the deceased the names of his assailants, who told him that appellant no.2 Rabindra Kalo caused injury on him by means of lathi and appellant no.1 Sundarmani Kalo caused injury on his person by means of budia (Tangia) and they brought the deceased to the District Headquarters Hospital, Criminal Appeal No.62 of 2000 Page 19 of 32 Sundargarh and after examination, the doctor (P.W.16) declared him dead. In the cross-examination, he has stated that he had gone alone after getting information about the incident to the place of occurrence and the place of occurrence was about half a mile from his house and most of the villagers had already assembled at the place of occurrence by the time he arrived there. Like P.W.1, suggestions have been given to this witness that by the time he reached at the place of occurrence, the deceased was dead and that he did not ask the deceased anything nor the deceased informed the names of the assailants, but P.W.2 has denied such suggestions. P.W.4 Dilip Kalo, who is the son of the deceased, has stated that P.W.5 and P.W.7 came to his house and informed that the deceased had been assaulted on the way while he was returning from the school and when he came to the place of occurrence, he saw cut injuries on the head of his father (deceased) and when he asked the deceased regarding the incident, the deceased told him that appellant no.1 caused injuries on his head by means of budia (Tangia) and appellant no.2 caused injuries on his person by means of lathi. He further stated that they brought the deceased to the hospital and after examination by the doctor (P.W.16), he was declared dead. In Criminal Appeal No.62 of 2000 Page 20 of 32 the cross-examination, he has stated that he along with his mother (P.W.1) came to the place of occurrence on foot after getting information from P.W.7 and about fifty persons had assembled at the place of occurrence by the time they reached there. Suggestions have been given to the witness that he had not asked anything to the deceased nor the deceased told him anything and that his father (deceased) was already dead by the time he reached there, but such suggestions have been denied by P.W.4. Learned counsel for the appellants though challenged the evidence of these three witnesses i.e. P.Ws.1, 2 and 4 on the ground that they were related to the deceased and there is every likelihood of telling falsehood, but law is well settled that related witnesses are not necessarily interested witness and they are not likely to spare real culprit and implicate an innocent person and the testimony of a related witness cannot be discarded solely on the ground of their relationship to the victim. In the case in hand, when all the three witnesses have consistently stated about the oral dying declaration made by the deceased at the spot and there is consistency in their evidence and nothing has been elicited in the cross-examination to disbelieve their statements, we are not inclined to accept the submission that Criminal Appeal No.62 of 2000 Page 21 of 32 the witnesses are to be disbelieved on the ground of their relationship. Moreover, the evidence of these related witnesses is getting corroboration from the other witnesses who are the co- villages of the deceased. P.W.3 Okilo Kalo has stated that in the afternoon of 23.01.1995, P.W.7 came to his house and informed him that the deceased had been assaulted on his way from the school and after getting such information, he came to the place of occurrence and gave water to the deceased and asked him about the names of the assailants and the deceased disclosed before him that the appellants caused injuries on his person by assaulting him. He further stated that the deceased was brought to the hospital and after examination by the doctor, he was declared dead. In the cross-examination, he has stated he had seen cut injuries by budia on the person of the deceased and that the deceased had sustained four cut injuries on his head. Suggestions have been given to P.W.3 that by the time, he reached the place of occurrence, the deceased had died and that he had not asked anything to the deceased relating to the names of the assailants and that the deceased did not tell him the names of the assailants, but all such suggestions have been denied by P.W.3. Criminal Appeal No.62 of 2000 Page 22 of 32 P.W.7 Purseth Dandasena is another co-villager, who has stated that on the date of occurrence, he had been to call the doctor as his mother was suffering from dysentery and on the way, he saw the deceased was lying having sustained bleeding injuries on his head and the doctor, who had gone to see his mother, asked the deceased about the incident and the deceased disclosed that both the appellants assaulted him and caused injuries on his person. He further stated that he came to the house of the deceased and informed his family members about the incident. In the cross-examination, he has stated that he reached at the place of occurrence about five to ten minutes after arrival of the doctor at the place and that the doctor told him to inform about the incident in the house of the deceased and accordingly, he came and informed. He specifically stated that he had informed about the incident to the widow of the deceased (P.W.1) and the son of the deceased (P.W.4). Suggestions have been given by the learned defence counsel to P.W.7 that the doctor did not ask anything to the deceased and that the deceased did not disclose the names of the appellants as his assailants but the same have been denied. P.W.8 Tinu Naik has stated that after getting information about the incident from P.W.9, he along with other Criminal Appeal No.62 of 2000 Page 23 of 32 co-villagers had been to the place of occurrence and saw cut and bleeding injuries caused by means of M.O.I on the head of the deceased and that they gave water to the deceased and thereafter, he asked the deceased about the incident and the deceased disclosed before him that both the appellants caused injuries on his person and thereafter, they brought the deceased from the place of occurrence to the deceased‟s house. In the cross-examination, he has stated that he got the information at about 4.30 p.m. from P.W.6 that the deceased was lying on the road having sustained injuries on his person. He has denied the suggestion that nothing was asked to the deceased and that the deceased did not disclose the names of both the appellants as his assailants. Thus, analysing the evidence of all the witnesses to the oral dying declaration, we find that not only the witnesses, who are related to the deceased, but also the independent witnesses, who are co-villagers of the deceased have stated that the deceased was alive and he was able to talk and he was given water and that he disclosed the names of both the appellants as his assailants and there is consistency in their evidence. Law is well settled that a dying declaration can be oral or in writing and any adequate method of communication Criminal Appeal No.62 of 2000 Page 24 of 32 whether by words or by signs or otherwise will suffice provided the indication is positive and definite. What evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the Court must be satisfied that the deceased was in a fit state of mind and that the disclosure was voluntary and truthful. In the case of Atbir -Vrs.- Government of NCT of Delhi reported in (2010) 9 Supreme Court Cases 1, the Hon‟ble Supreme Court has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration, which are as follows: “22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court; (ii) The Court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination; (iii) Where the Court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration; Criminal Appeal No.62 of 2000 Page 25 of 32 (iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence; (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence; (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction; (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected; (viii) Even if it is a brief statement, it is not to be discarded; (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail; (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no Criminal Appeal No.62 of 2000 Page 26 of 32 legal impediment to make it the basis of conviction, even if there is no corroboration.” In the case of Babulal and Ors. -Vrs.- State of M.P. reported in (2003) 12 Supreme Court Cases 490, the value of dying declaration in evidence has been stated as follows: “7......A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is "a man will not meet his Maker with a lie in his mouth" (nemo moriturus praesumitur mentire). Mathew Arnold said, "truth sits on the lips of a dying man". The general principle on which the species of evidence is admitted is that they are declarations made in 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 mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is Criminal Appeal No.62 of 2000 Page 27 of 32 imposed by a positive oath administered in a court of justice. ...” In the case of Prakash and Anr. -Vrs.- State of Madhya Pradesh reported in (1992) 4 Supreme Court Cases 225, the Hon‟ble Supreme Court while dealing with oral dying declaration has held as follows: “11…..In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognized the assailants. In the instant case, there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody’s case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants….” In the case of Vijay Pal -Vrs.- State (Government of NCT of Delhi) reported in (2015) 4 Supreme Court Cases 749, the Hon‟ble Supreme Court held as follows: “22…..The law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a Criminal Appeal No.62 of 2000 Page 28 of 32 dying declaration to a witness, there is no justification to discard the same...” Therefore, the dying declaration is entitled to great weight and it should be of such nature as to inspire full confidence of the Court and the Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. The rule requiring corroboration is merely a rule of prudence. In the case in hand, as we have already discussed that number of witnesses have stated that the deceased was alive, he took water and on being asked, he disclosed the names of his assailants and those two assailants are none else than the two appellants of this criminal appeal and that the evidence is consistent, we found no doubtful feature in the evidence of oral dying declaration and it inspires confidence of this Court. Though the learned counsel for the appellants argued that since the deceased had sustained number of injuries on the vital part of Criminal Appeal No.62 of 2000 Page 29 of 32 the body like head and the doctor had stated that the cause of death was on account of haemorrhage and shock leading to coma due to injuries to vital organs like spleen and compression of brain, therefore the mental fitness is a doubtful feature, but nothing has been elicited from the evidence of the doctor that on receipt of such injuries, the deceased was not in a position to speak or that he could not be in a fit state of mind. Therefore, on assumption that the deceased would not be in a fit state of mind, the evidence of the witnesses to the dying declaration cannot be discarded. Moreover, the appellants were known to the deceased and the occurrence happened during day time. Therefore, the question of doubt regarding the visibility factor does not arise in this case. Thus, we are of the view that the learned trial Court is quite justified in placing reliance on the evidence of the oral dying declaration adduced by the prosecution even after discarding the evidence of the eye witnesses. As per the evidence on record, the appellant no.1 gave recovery of one Tangia as well as one lathi. However, those were not produced before the doctor (P.W.16) for his examination and opinion. It is also a fact that those two weapons were sent through Court for Chemical Examination and in the Criminal Appeal No.62 of 2000 Page 30 of 32 axe, no blood was found and in the lathi, though blood was found, but there was no opinion relating to its origin or grouping. Since we accept the evidence relating to the oral dying declaration given by the witnesses and the corroborating evidence adduced by the doctor (P.W.16) and from the evidence of such witnesses, it appears that it was on account of the assault by the appellants, the death of the deceased had taken place, we are of the humble view that the learned trial Court has rightly found the appellants guilty under section 302/34 of the I.P.C. Accordingly, we find no merits in the criminal appeal and the same is dismissed. The conviction of the appellants under section 302/34 of the Indian Penal Code and the sentence passed thereunder stands confirmed. The appellants were directed to be released on bail as per order dated 09.01.2004 and it has also been reported by the Inspector in-charge of Sadar police station, Sundargarh that both the appellants are alive as per the written instruction dated 02.09.2025, which we have recorded in the order dated 23.09.2025. Their bail bonds and surety bonds stand cancelled. They shall surrender before the learned trial Court within three (3) weeks from today to serve out the sentence awarded by the learned trial Court which Criminal Appeal No.62 of 2000 Page 31 of 32 is confirmed by us, failing which, the learned trial Court shall take appropriate steps for their arrest and send them to judicial custody. Before parting with the case, we would like to put on record our appreciation to Smt. Mandakini Panda, learned counsel appearing for the appellants for rendering her valuable help and assistance towards arriving at the decision above mentioned. This Court also appreciates the valuable help and assistance provided by Mr. Sarat Chandra Pradhan, learned Additional Standing Counsel. The trial Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. ................................. S.K. Sahoo, J. .................................. Chittaranjan Dash, J. Orissa High Court, Cuttack The 2nd December, 2025/RKMishra/Sipun Criminal Appeal No.62 of 2000 Page 32 of 32