JUDGMENT

DESAI, J. :— The appeal under Section 2A of the SC (Enlargement of Criminal Jurisdiction) Act, arises from a trial held by the learned Additional Sessions Judge, Cuttack against the present six appellants and two others in which they were charged for committing the murder of one Lakshman Kumar Das and thereby committing an offence under S. 302 read with S. 34, Indian Penal Code or in the alternative under S. 302 read with S. 149 Indian Penal Code.

2. Prosecution case is a very simple one. There was some litigation between deceased Lakshman Kumar Das on one hand and the appellants on the other and the relations between them were embittered. On 4th April, 1971 in the early hours of the morning deceased went out in the open place to ease himself. He was sitting behind a ridge in the land belonging to one Raghu Padhan. At that time accused 2 Rabi Chandra Padhan approached him and gave him a blow with a bamboo stick on his right thigh. Deceased Lakshman Kumar Das tried to escape. At that time the other accused came over there. Accused 5 was armed with a Katua and other accused were armed with bamboo sticks. All the accused belaboured the deceased. The deceased raised an alarm which attracted the attention of P. W. 1 Chakradhar Muduli, P. W. 2 Kanhai Muduli and P. W. 3 Rajan Muduli. A large crowd collected there and on seeing them the accused ran away. Deceased Lakshman Kumar Das was placed on a cot described as Khatia and was taken to Banki Police Station where first information report. Ext. 9 on the information given by deceased Lakshman Kumar Das himself was recorded. He was then taken to the hospital nearby. On an intimation being sent to the local Magistrate, P. W. 9 Prasana Kumar Patnaik, Addl. Tahsildar Banki, went to the hospital and recorded the dying declaration Ext. 4 of the deceased. The deceased succumbed to his injuries on 5th April, 1971. The accused were arrested and charge-sheeted for the aforementioned offences.

3. Before the learned Addl. Sessions Judge the prosecution led evidence of three witnesses, P. W. 1 Chakradhar Muduli, P. W. 2, Kanhai Muduli and P. W. 3, Rajan Muduli and the dying declarations oral as well as written made by the deceased Lakshman Kumar Das. The learned Addl. Sessions Judge was not impressed with the testimony of the eyewitnesses because in his view the occurrence took place much before day break and, therefore, eye-witnesses could not have been present to witness the occurrence. He was also not satisfied that the two dying declarations Ext. 9 also treated as first information report and Ext. 4 recorded by P. W. 9 Prasana Kumar Patnaik Addl. Tahsildar, Banki, narrated a truthful version of the occurrence. In this view of the matter the trial Court acquitted all the accused observing that the charge was not brought home to them.

4. The State of Orissa preferred an appeal to the High Court of Orissa against the acquittal of the accused. The High Court reversed the findings of the trial Court holding that the dying declarations narrated a truthful version of the occurrence and were an acceptable piece of evidence on which a conviction can be founded even in the absence of any independent corroboration. However, as the deceased had not named accused 1 in Ext. 9 and had also not named accused 8 in Ext. 4 they were given benefit of doubt. The High Court also observed that there is no justification for discarding the evidence of the eye-witnesses. In accordance with these findings the High Court set aside the acquittal of original accused 2 to 7 and convicted them for committing an offence under S. 302 read with S. 34, I. P. C. and sentenced each of them to suffer rigorous imprisonment for life. The appeal by the State of Orissa against the acquittal of original accused 1 and 8 was dismissed and their acquittal was affirmed. Hence this appeal by original accused 2 to 7.

5. Mr. R. L. Kohli, learned counsel who appeared for the appellants, urged that the two written dying declarations Exts. 9