ORDER

1. THE APPELLANT STOOD TRIAL BEFORE THE SESSIONS JUDGE, KAMRUP FOR THE OFFENCE OF KILLING ONE GOBINDA DAS WITH A "KHUKRI" (SHARP-CUTTING WEAPON) IN VILLAGE BARUAPARA ON THE NIGHT OF 7-7-1990 AT ABOUT 9 P.M. THE APPELLANT WAS CONVICTED UNDER SECTION 302 IPC AND SENTENCED TO LIFE IMPRISONMENT. ON APPEAL BY THE ACCUSED, THE HIGH COURT CONFIRMED THE CONVICTION AND SENTENCE. HENCE THIS FURTHER APPEAL TO THIS COURT.

2. THE INFORMANT RABIN DAS, WHO IS EXAMINED AS PW 4 CAME OUT OF THE HOUSE OF ONE BHABANI SARMA WITH THE DECEASED ON THE NIGHT OF 7-7-1990 AT ABOUT 9 P.M. AND THEY WERE PROCEEDING TO THEIR RESPECTIVE HOUSES IN TWO DIFFERENT DIRECTIONS, THE DECEASED BY A BICYCLE AND PW 4 ON FOOT. A SHORT WHILE THEREAFTER, PW 4 HEARD THE SCREAMS OF THE DECEASED. THEN PW 4 RUSHED BACK TO THE SPOT AND FOUND GOBINDA DAS LYING IN AN INJURED CONDITION. BY THE TIME HE WAS TAKEN TO THE HOSPITAL, HE WAS DECLARED DEAD. PW 4- GOT THE FIR (EXT. 1) LODGED IN THE POLICE STATION AT CHAYGAON ON THE SAME NIGHT. IN THE C FIR IT WAS MENTIONED BY PW 4 THAT:

"WHEN ASKED WHO HAS ASSAULTED HIM, GOBINDA DAS SAID GHANASHYAM AND BECAME UNCONSCIOUS AND SOME TIME THEREAFTER, THE RESIDENTS OF THE VILLAGE CAME TO THE PLACE OF OCCURRENCE."

3. THE POST-MORTEM REVEALED SEVERAL INCISED WOUNDS, ONE ON THE LEFT SIDE OF THE NECK 8.5 CM X 5.5 CM BONE-DEEP RESULTING IN INCISION OF 4TH CERVICAL VERTEBRA, AN INCISED WOUND 11 CM X 4.5 CM X 2.5 CM ON THE LEFT SIDE OF THE CHEEK, INCISED WOUND 14 CM X 2 CM X 3 CM MUSCLE-DEEP ABOVE THE LEFT EAR IN THE PARIETAL REGION AND OTHER INCISED WOUNDS OVER THE VERTEX, ETC. THE CAUSE OF DEATH WAS FOUND TO BE HAEMORRHAGE AND SHOCK AS A RESULT OF INJURIES CAUSED BY A SHARP-CUTTING WEAPON. THE MEDICAL OFFICER OPINED THAT INJURIES E COULD BE CAUSED BY A KHUKRI.

4. THE MOST INCRIMINATING EVIDENCE IN THIS CASE IS THE DYING DECLARATION MADE BY THE DECEASED TO PW 4. AFTER UTTERING THE WORDS THAT GHANASHYAM "CUT HIM" THE VICTIM BECAME UNCONSCIOUS. IT MAY BE RECALLED THAT PW 4 WAS WITH THE DECEASED TILL THEY PARTED COMPANY TO GO TO THEIR RESPECTIVE HOUSES AND WITHIN A FEW MINUTES THEREAFTER, THE INCIDENT HAD HAPPENED. THERE IS ABSOLUTELY NO REASON WHY PW 4 WOULD COME FORWARD TO GIVE A FALSE VERSION TO IMPLICATE THE ACCUSED. THE ORAL DYING DECLARATION MADE TO PW 4 WAS BELIEVED BY THE TRIAL COURT AS WELL AS BY THE HIGH COURT. IN THE FIR LODGED WITHOUT DELAY, THE ORAL DYING DECLARATION WAS SPECIFICALLY MENTIONED.

5. ANOTHER INCRIMINATING CIRCUMSTANCE WHICH CORROBORATES THE CASE OF THE PROSECUTION IS THAT THE APPELLANT LED THE 10 PW 12 TO KHARBHANGA RIVERSIDE AND POINTED OUT THE PLACE WHERE HE HAD THROWN AWAY THE KHUKRI. ACCORDING TO THE EVIDENCE OF PW 12 THE 10 AND PW 6, THE KHUKRI WAS RECOVERED FROM THE RIVER WITH THE HELP OF A DIVER. THOUGH BOTH THE COURTS HAVE ESCHEWED THIS CIRCUMSTANCE FROM CONSIDERATION ON THE GROUND THAT NO INFORMATION WAS RECORDED BY PW 12 THE 10 SO AS TO ATTRACT SECTION 27 OF THE EVIDENCE ACT, WE ARE OF THE VIEW THAT THE EVIDENCE OF PW 12 AND PW 6 TO THE EFFECT THAT THE ACCUSED LED THEM TO THE SPOT AND POINTED OUT THE PLACE WHERE THE KHUKRI WAS THROWN, WHICH FACT STANDS CONFIRMED BY ITS RECOVERY, CAN BE LOOKED INTO TO THROW LIGHT ON THE CONDUCT OF THE ACCUSED UNDER SECTION 8 OF THE EVIDENCE ACT VIDE H.P. ADMN. V. OM PRAKASH1.

6. THE CONTENTION OF THE LEARNED COUNSEL FOR THE RESPONDENT THAT WITH THE MAGNITUDE OF INJURIES THE VICTIM SUFFERED, HE WOULD NOT HAVE BEEN IN A POSITION TO SPEAK OUT, HAS BEEN REJECTED BY THE HIGH COURT. THE POSSIBILITY OF THE DECEASED SAYING A FEW WORDS BEFORE HE BECAME UNCONSCIOUS CANNOT BE RULED OUT ESPECIALLY WHEN THERE IS NO CROSS-EXAMINATION OF THE MEDICAL OFFICER ON THIS ASPECT.

7. THE FINDINGS RECORDED BY BOTH THE COURTS THAT THE PROSECUTION CASE HAS BEEN ESTABLISHED BEYOND REASONABLE DOUBT CANNOT BE FAULTED. THE APPEAL IS DISMISSED.