JUDGMENT :

A.M. BADAR, J.

1. The appellant/accused by this appeal is challenging the Judgment and order dated 03.07.1995 passed by the learned Additional Sessions Judge-VII, Munger, in Sessions Case No.562 of 1993 thereby convicting him of the offence punishable under Section 302 of the Indian Penal Code and sentencing to suffer him for imprisonment for life.

2. For the sake of convenience, the appellant shall be addressed in his original capacity as an accused.

3. The facts leading to the prosecution of the appellant/accused as projected from the police report can be summarized thus:

(a). Accused Balmiki Prasad Chourasia is second husband of Mira Kumari alias Shakuntala Devi (since deceased). This couple was staying at the portion of house of P.W. 4 Devansu Prasad Chourasia which is situated at Chhoti Kelabari area under jurisdiction of Police Station-Kotwali District-Munger, by taking it on rent. It is averred by the prosecution that the accused is a man of short tampered nature and he used to quarrel with his wife Mira Kumari alias Shakuntala Devi (since deceased) frequently.

(b). The incident in question allegedly took place in the night intervening 13th and 14th August 1993 at the residential house of Mira Kumari alias Shakuntala Devi which she was sharing with the accused. The accused started beating Mira Kumari alias Shankuntala Devi at about 08.00 P.M. of that night. Thereafter he had taken an axe from the house and gave a blow of that axe on the neck of Mira Kumari alias Shakuntala Devi. That blow caused bleeding injury on the neck of Mira Kumari alias Shakuntala Devi. She then went to Sadar Hospital, Munger, in an injured condition for medical treatment. At that Hospital, at about 01.30 A.M. of 14th August 1993, her statement came to be recorded by P.W.8 Sushil Kumar Khanna Assistant Police Inspector of Police Station-Kotwali. Accordingly, the subject crime came to be registered at about 01.30 A.M. on 14.08.1993. Mira Kumari alias Shakuntala Devi ultimately succumbed to the injury sufferred by her on the very same day.

(c). After death of Mira Kumari alias Shakuntala Devi, Section 302 of the Indian Penal Code was added to the case diary of the crime. Inquest notes were prepared after inspecting the dead body of Mira Kumari alias Shakuntala Devi. The dead body of Mira Kumari alias Shakuntala Devi was then sent for autopsy. P.W.6 Dr. H.N. Mandal, Civil Assistant Surgeon performed the post-mortem examination on the dead body.

(d). The Statement of the witnesses came to be recorded and on completing investigation, the accused came to be charge-sheeted.

(e). Charge for the offence under Section 302 of the Indian Penal Code was framed and explained to the accused. He pleaded not guilty and claimed to be tried. In order to bring home the guilt of the accused, the prosecution examined in all 9 witnesses. The defence of the accused was of total denial.

(f). After hearing the parties, the learned trial court by the impugned Judgment and Order was pleased to convict the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code and he is sentenced to suffer life imprisonment.

4. We have heard Sri Amish Kumar, learned Advocate, appointed to represent the appellant at the cost of the State. He argued that the entire case of the prosecution is based on a single piece of evidence and that is the dying declaration of the deceased made by her and recorded by P.W.8 Sushil Kumar Khanna, Assistant Police Inspector. It is argued that the said dying declaration is not trustworthy and reliable to convict the appellant/accused. The same was not recorded after getting the medical condition of the deceased examined from the attending Medical Officer. The injury was on the neck and the deceased succumbed to the injury within a short period of time. Therefore, it cannot be said that the deceased was in a position to make the statement.

5. Learned appointed Advocate further argued that the evidence of P.W.3 Bishwa Nath Mandal c