The dying declaration can be treated as substantial evidence for conviction and sentence, provided it inspires confidence and trustworthiness, and need not be recorded by a medical or police officer.

P.K. Musahary, J.

1. The short fact of the case is that the housewife Musstt. Rumija Begum was attacked in her house on 7-10-1999 at around 8 p.m. while her husband was offering prayer in the nearby mosque, by a young man accused-Halim Ali with a dagger inflicting injuries on several parts of her body including neck and hand. She was found lying in a pool of blood and was immediately rushed to Mangaldoi Civil Hospital. As her condition was serious, she was sent to Guwahati Medical College Hospital, who succumbed to her injuries on 9-10-1999 at 1.10 a.m. On the basis of a written Ejahar dated 8-10-1999 lodged by Md. Karim Ali. husband of the deceased, a crime being Sipajhar P.S. Case No. 138/1999 was registered under Section 448/326, I.P.C. Subsequently, offence under Section 302, I.P.C. was added thereto after the death of the injured Rumija Begum. On completion of Investigation charge-sheet was laid against the accused. On committal the trial proceeded in the Court of ad hoc Additional Sessions Judge, Darrang, Mangaldoi. Charges under Section 448/302, I.P.C. were framed against the accused-Halim Ali who pleaded not guilty and claimed to be tried.

2. The prosecution examined as many as 11 witnesses but the defence examined none. The learned trial Court by judgment and order dated 29-3-2004 passed in Sessions Case No. 125 (DMFT)/01 convicted the accused under Section 445, I.P.C. for which he was sentenced to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- in default to undergo another period of rigorous imprisonment for three months and also convicted under Section 302, I.P.C. for which he was sentenced to undergo rigorous imprisonment for life with fine of Rs. 3,000/- in default to undergo another period of rigorous imprisonment for six months. Both the sentences should run concurrently. The present appeal is preferred against the aforesaid judgment and order.

3. We have perused the records of the case and the impugned judgment and order and heard Mr. J.M. Choudhury, learned senior counsel for the appellant assisted by Mr. B.M. Choudhury and also heard Mr. B.B. Gogoi, learned Additional PP, Assam. The basic submission of Mr. Choudhury is that the so called dying declaration, which finds no mention in the FIR was falsely introduced by the prosecution on the basis of the interested and enmical witnesses namely, P.W. 1, P.W. 2 and P.W. 7, and as such the impugned conviction and sentence are not sustainable under the law.

4. Mr. J.M. Choudhury, learned senior Counsel for the appellant has taken us through the evidence of prosecution witnesses particularly, P.W. 1, P.W. 2, P.W. 6 and P.W. 7.

5. P.W. 1, Karim Ali, husband of the deceased deposed that around 7 p.m. on the date of occurrence, when he was in the mosque to recite "namaz," he was informed by his nephew, Aminul (P.W. 3) and elder brother Ajak Ali that his wife was hacked. He rushed to his house and found his wife lying in an injured condition. He saw injury marks on the neck, belly and hands of his wife with fingers almost severed. When he asked his wife, she told him that Halim, son of Eunus had cut her. His younger brother Gafur (P.W. 7), Fakar Ali and niece Firiza (P.W. 2) took his wife to Mangaldoi Civil Hospital and thereafter shifted to GMC hospital where she died. In cross-examination, P.W. 1 stated that his wife could talk for about 10-15 minutes and after that she became unconscious. Ejahar was written by a petition writer, Aminul at his dictation but he did not get it incorporated in the Ejahar that deceased told him that it was accused-Halim who had hacked her.

6. P.W. 2, Firiza Begum, is the wife of Gafur Ali, brother of Karim Ali. She deposed that around 7 p.m. on the date of occurrence she was cooking rice in the kitchen and her husband was in the mosque. It was raining heavily. On hearing cry of Rumija, she rushed to the bedroom of Rumija and found her in a pool of blood. She found none Rumija could not talk properly because of her