JUDGMENT

FAZAL ALI, J. :—This appeal under S. 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act 1970 is directed against the judgment of the High Court of Orissa dated 2-11-1973 convicting the appellants under S. 302/149 of Indian Penal Code and sentencing them to imprisonment for life.

2. The appellants along with other accused persons were tried before the Sessions Judge under S. 302/149 for causing murder of two persons namely Ghansham and his brother Antarjami. The trial Court after considering the evidence acquitted all the accused of the charges framed against them. Thereafter the State of Orissa filed an appeal before the High Court against the order of acquittal passed by the Sessions Judge and in the said appeal the High Court reversed the judgment of the Sessions Judge so far as the appellants were concerned and convicted and sentenced them as indicated above: Hence this appeal before us.

3. The facts of the case are detailed in the judgment of the High Court and it is not necessary for us to repeat them. It appears that shortly before the date of occurrence, there was a partition suit between the parties in respect of certain properties enjoyed by accused Banshi and Ghana. On 2-12-1968, according to the prosecution, the accused persons armed with lathis, Bhusas and valies came to the house of the deceased Ghansham and called him out. When Ghansham opened the door, the accused Banshi stabbed Ghansham on the chest as a result of which Ghansham fell down and died. On hearing the alarm, the other deceased Antarjami who was brother of Ghansham went to the spot and he was also assaulted by the accused persons. This occurrence had taken place near about 7.00 a.m. F.I.R. was sent to Bramhagiri Police Station where it was lodged and a case was registered. After the usual investigation, police submitted charge-sheet against all the accused persons who where tried by the Sessions Judge with the result mentioned above.

4. It appears that the trial Court after considering the evidence of the eye witness examined before it came to a clear finding that none of the eye-witnesses were reliable and hence the 0accused could not be convicted on the basis of their testimony. One of the main considerations which weighed with the trial Court in coming to this conclusion was that in view of the dying declaration - Ex. 9 made by Antarjami, the evidence of the eye-witnesses becomes improbable, and is in fact falsified. The learned Sessions Judge also disbelieved the dying declaration as it was inconsistent with the oral evidence. We might mention here that the Sessions Judge committed an error of law in rejecting the dying declaration because if the evidence of the eye-witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence.

5. The High Court while endorsing the findings of the trial Court that no reliance could be placed on the eye-witnesses appears to have founded the conviction of the appellants mainly on the basis of the dying declaration - Ex. 9 recorded by Dr. Mohanty on 3-12-1968 at the hospital. The High Court has given cogent reasons for holding that the dying declaration is absolutely true and reliable and was sufficient to establish the prosecution case against the appellants. We have also gone through the entire dying declaration - Ex. 9 very carefully and we find that the statement made by Antarjami is straightforward, rational, consistent and absolutely coherent. There appears to be a ring of truth in the statement made by Antarjami. Counsel for the appellant has fairly conceded that there is no evidence whatsoever to indicate that there was any possibility of prompting the deceased to make a tainted statement. The dying declaration was attacked by the counsel for the appellant on three grounds. In the first place, it was submitted that as the dec