JUDGMENT

B.P. RAY, J. — Since both the appeal arise out of one judgment, they are heard together and are disposed of by the following common judgment.

2.Both the appellants assailing their conviction under Sections 302/452/34 of the I.P.C. and sentences passed there under to undergo imprisonment for life and R.I. for five years respectively by the learned Addl.Sessions Judge, Cuttack have preferred the appeals.

3.The allegations which led the appellants to trial briefly stated are that on 24.3.1995 at about 4 P.M., the deceased Harmohan Bisoi was returning to his quarter at Railway Colony from his duty. The appellants and two other, namely, Deba @ Debendra Kumar Das (since acquitted) and one Bhaskar Pradhan (absconding accused) who were concealing nearby chased the deceased to the quarters and hacked him by means of sword and knife. Thereafter, the deceased was removed to the S.C.B. Medical College and Hospital, but he succumbed to the injuries at 5.30 P.M. on the very day.

4.Appellants have taken the plea of complete denial.

5.The learned trial Court on appreciation of evidence while acquitting the accused Deba @ Debendra Kumar Das of all the charges found the appellants guilty of committing murder of the deceased-Harmohan Bisoi, accordingly he recorded the order of conviction and sentence as mentioned above.

6.The appellants challenging the impugned judgment and order have urged the following points :-

(i)the eye witness cited by the prosecution did not support the prosecution case.

(ii)dying declaration is not free from suspicion.

(iii)declarant was not in a fit state of mind.

(iv)the evidence of P.Ws.4 and 14, witnesses to the dying declaration suffers from infirmities and material contradiction.

(v)recovery of weapon of offence is doubtful.

(vi)delay in sending the material object for chemical examination.

(vii)mere absconding itself is not sufficient to hold a person guilty.

(viii)no opinion about the blood group in respect of the pant of the accused (MO-X).

7.The deceased was a railway employee and was allotted quarters No.EL12/A. P.W.13, who happens to be the son of his friend, was residing with him and was searching for employment. On the fateful day while P.W.13 was taking tea in front of the quarters, at that time the deceased returned from his duty. It is alleged that the accused persons, who were waiting nearby, chased him to the quarters and mercilessly hacked him by means of sword and knife causing as many as 13 cut injuries on different parts of his body. The cut wound and their dimensions have been mentioned by P.W.11 in the post mortem report, Ext.7. The opinion of the Medical Officer is that the death has occurred on account of injuries which were ante-mortem in nature and due to combined effect of shock and haemorrhage from the injuries. From the above evidence, it is concluded that the deceased died a homicidal death.

8.P.W.13, though a witness to the entire occurrence and had lodged the F.I.R. depicting the details of it, but during the trial turned his back to the prosecution. Similarly, P.W.2, who had not only witnessed the assault on the deceased, but also a witness to the disclosure of the names of the assailants by the deceased turned hostile. Since both the witnesses resiled from their previous statement and concealed the facts, no ocular evidence is available.

9.It is contended that the dying declaration is not trustworthy since the declarant was not in a fit state as such the same cannot be acted upon. In order to appreciate the above contention, the evidence of P.Ws.4, 11 & 14 are relevant. P.W.4 in his evidence has stated that on 24.3.1995 he was performing duty in the office of the D.I.G., Railway situated near the Railway Colony. The deceased was residing in the said colony. At about 4.10 P.M. two persons came there and informed that the deceased had been assaulted. Hearing the same P.W.4 reached the quarters of the deceased and found that the deceased was lying in a pool of blood with multiple bleeding injuri