Honble SHARMA, J.–This a case where the basis of conviction of the appellants (herein after described as the `accused) is the dying declaration. The admissibility of dying declaration rests on the principle that a sense of impending death produces in a mans mind the same feeling as that of a conscientious and virtuous man under oath. Truth sits on the lips of dying man. Dying situation is considered so solemn and so awful by the law as creating an obligation equal to that which is imposed by a positive oath administered in the Court.

(2). The accused, six in number, were indicted in Sessions Case No. 28/1998 before the learned Additional Sessions Judge No. 2, Bundi for having committed murder of Kailash. Learned Judge vide judgment dated May 24, 2000 convicted and sentenced each of the accused under Section 302 IPC to suffer Imprisonment for life and fine of Rs. 2500/-, in default to further suffer six months simple Imprisonment.

(3). As per the prosecution case Kailash was brought to the General Hospital Bundi on February 24, 1990 from village Bada Naya Gaon in the injured condition. He was admitted to the Hospital at 12.15 PM. Since it was a medico legal case, Hospital authorities informed Police Station Kotwali Bundi over telephone Shaikh Nawab, ASI (PW. 8) recorded the said information in Rojnamcha and reached Hospital within 10-15 minutes and noted the statements of Kailash in `Parcha Bayan at 12.30 PM. In the Parcha Bayan Kailash stated that around 7-8 AM on the said day he found 10-15 Gujars including RamNath, Prabhu, Nand Kishore and Prakash standing near his field. When he asked them not to cut ``Neem-tree, Ram Nath inflicted axe blow whereas others gave beating with lathis. Radha Kishan was also amongst the assailants. This incident had been witnessed by Durga. Kailash put his thumb impression on `Parcha Bayan, Shaikh Nawab at the end of `Parcha Bayan made endorsement registering a case under Sections 147, 148, 149, 324, 323 and 307 IPC and noted that since the incident occurred within the jurisdiction of Police Station Hindoli. Parcha Bayan shall be forwarded to Police Station Hindoli. During the pendency of investigation Kailash died and the case was converted under Section 302 IPC. After usual investigation charge sheet was filed and the case came up for trial before the learned Additional Sessions Judge No.2, Bundi. Charge under Section 302 IPC was framed against the accused, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 22 witnesses. In the explanation under Sec. 313 Cr.P.C., the accused claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the accused as indicated herein above.

(4). The evidence adduced at the trial by the prosecution may be divided into four categories:-

(i) Dying declaration recorded by Shaikh Nawab, ASI (PW. 8);

(ii) Testimony of Chhotu Lal (PW. 20), Mohan Lal (PW. 21) and Ghansi (PW. 22) who met the deceased immediately after the incident;

(iii) Testimony of Dr. Kamlesh Kumar who examined the injuries of the deceased and performed autopsy on the dead body;

(iv) Testimony of Udai Lal ASI (PW. 14) and Navneet Mehrishi Crime Assistant (PW. 15), who effected recovery of blood stained weapons at the instance of the accused.

(5). We have heard the arguments canvassed before us on behalf of the accused, State and the complainant.

(6). Before adverting to the submissions advanced at the Bar. We deem it necessary to narrate the principles governing dying declaration, laid down by the Supreme Court in the various judgments. They are as under:-

(i) There is neither rule of law nor of prudence that dying declaration can be acted upon without corroboration (Munnu Raja vs. State of M.P. (1976 (3) SCC 104);

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration (State of U.P. vs. Ram Sagar Yadav (1985 (

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