JUDGMENT

PRADIP MOHANTY, J. : There are two appellants in this appeal, namely, Gouranga and Dasha. They have been convicted under Section 302/34 I.P.C. by the learned Ist Additional Ses¬sions Judge, Puri and sentenced to undergo imprisonment for life in S.T. Case No.18/89 of 1992.

2. The brief fact of the case is that the informant and his deceased brother Krushna had gone to their land for the purpose of harvesting paddy on 12.11.1991. Having harvested paddy, the informant proceeded ahead of his deceased brother. While they were passing through the land of one Laxman Parida, the deceased raised hue and cry ‘HANI DELA HANI DELA’. When the informant looked back, he saw appellant-Gouranga dealing blows to his brother by means of a tangia and his brother appellant Dasha was standing near by and exhorting him to slay the deceased. When the informant rushed towards the deceased, the accused persons/appellants fled away from the spot. Soon thereafter, P.W.4, P.W.7, Daru Parida, Kasinath Swain and others came running to the spot. The informant found the left palm, from the little above the wrist joint, of the deceased to have been completely severed and lying nearby. He further found incised wounds accom¬panied by profuse bleeding on both of his legs and his condition was serious. Thereafter, he shifted the deceased to the hospital and lodged the F.I.R. in Nuagaon Police Station. The case was initially registered under Sections 307/326/34 I.P.C. The de¬ceased succumbed to injuries on 13.11.1991 and the case turned to one under Section 302/34 I.P.C. On 15.11.1991, both the accused persons surrendered before the Court. The I.O. took them to police custody for their interrogation and ultimately on comple¬tion of investigation filed charge sheet whereupon the appellants stood their trial under Section 302/34, IPC.

3. The appellants took the plea of denial and false impli¬cation. This apart, appellants No.1 pleaded alibi and took the stand that on the date of alleged occurrence he had gone to work for one Chintamani Malik as a field servant. In order to prove the case, prosecution examined as many as 11 witnesses including the Medical Officer and the I.O., and exhibited 20 documents. Defence examined none. The trial Court on conclusion of the trial by the impugned judgment convicted and sentenced the appellants as already mentioned herein above.

4. Mr. B. Panda, learned counsel for the appellants as¬sailed the judgment on the following grounds :

(i) The F.I.R. story and the story unfolded before the Court at the time of trial materially differs;

(ii) A new story was introduced by the prosecution to suit the medical evidence;

(iii) Oral dying declaration before P.W.7 is not reliable;

(iv) To so-called Dying Declaration recorded under Ext.11 is also doubtful and not free from suspicion;

(v) Factum of leading to discovery of M.O.I. and M.O.II has not been proved by the prosecution;

(vi) Non-mentioning of the names of the assailants in the inquest report and the dead body challan creates a doubt on the prosecu¬tion case;

(vii) Independent and material witnesses have not been exam¬ined by the prosecution;

(viii) Delay in forwarding the statements of material witness¬es and the dying declaration is fatal to the prosecution; and

(ix) There are major contradictions appearing in the evidence of the eye witnesses.

5. Mr. Mishra, learned Additional Government Advocate vehemently contended that the dying declaration is genuine. P.W.8, who is an independent witness and responsible officer, deposes to have recorded the dying declaration of the deceased at 3.30 P.M. in presence of the witnesses as requisition was made by the I.O. (P.W.11). Variance of statement of informant by itself is not fatal to the prosecution case. He further contended that the evidence of P.Ws.4, 5 and 7 is sufficient to convict the appellants under Section 302/34, I.P.C. There is no illegality committed by the trial Court convicting the appellants under Section 302/34, I.P.C.

6. Learned