The admissibility and evidentiary value of oral dying declarations, emphasizing the requirement of the deceased being in a fit state of mind and capable of making a statement. The judgment highlighted the importance of scrutinizing the dying declaration for trustworthiness and consistency with other evidence, and emphasized that a dying declaration, if found reliable, can form the basis of conviction even without corroboration.

P.G. Agarwal, J.

1. This appeal is directed against the judgment, dated 29.4.99 passed by the learned Sessions Judge, Barpeta in sessions Case No. 58/1996.

2. On 25.3.94 the complainant Bhupen Nath P.W. 2 lodged a written FIR before the police staling inter-alia that on that day there was a village trial at the instance of the gaonbura wherein his elder brother Dwipen Nath had an altercation with the two accused persons Utpal Nath and Jiten Das and thereafter at 9.30 PM these two accused persons came to the house of Dwipen Nath and called him out for certain discussions and thereafter they stabbed him with daggers. The injured was thereafter removed to hospital where the doctor declared him dead.

3. During trial, prosecution examined as many as nine witnesses and on conclusion of the trial, the learned trial court convicted the accused Appellants under Section 302 IPC and sentenced them to imprisonment for life and to pay a fine of Rs.2000/- each in default further imprisonment for six months. Hence the present appeal.

4. We have heard Mr. A.S. Choudhury, learned Senior Advocate assisted by Mr. A.R. Sikdar, learned Counsel for the Appellants and Mr. F.H. Laskar, learned Public Prosecutor for the Respondents.

5. Bhupen Nath P.W. 2 is the brother of the deceased whereas Smti. Ramila Nath P.W. 3 is the wife of the deceased Dwipen Nath. Upen Ch. Nath P.W. 4 is Anr. brother of the deceased. Ram Nath P.W. 5, Prafulla Das Gaonbura P.W. 6, Raben Nath P.W. 7 are the other co-villagers. Prafulla Nath P.W. 8 has been declared hostile by the prosecution. All the above witnesses, however, have deposed about the assault on the deceased and his subsequent death in the hospital. P.W. 1 is Dr. Ganesh Sarma who conducted the post mortem over the dead body and found as follows:

External Injuries:

(i) One stab injury over right lower part of the abdomen-Size-about one and half inch x1" x3 1/3".

(ii) One stab injury over the right thigh upper part-size-2" x1" muscles deep.

(iii) One bruise over the back of the right upper part, size-about 2½"x2".

Abdomen:

There was perforation of small intestine at the side of wound. One loop small intestine was coming out through the wound. The injuries were ante-mortem in nature.

6. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries sustained. The doctor was further of the view that perforation of the small intestine was sufficient to cause death in ordinary course and that the injuries must have been caused with sharp weapons.

7. In view of the overwhelming oral and medical evidence on record the trial court held this to be a case of homicide and we find no material to take a contrary view of the matter.

8. In the present case, the incident took place around 9.30 PM near the house of the deceased. P.W. 3, the widow, has deposed that around 9.30 PM the two accused persons came to their house and called out her husband whereupon her husband went out and within few minutes she heard shouts of her husband calling for help. She ran towards the place of occurrence and saw the two accused persons with her husband and thereafter the two accused persons fled. She claimed that she could recognize the accused persons as she had seen them from a distance of 20 cubits and it was a moonlit night. Further when she reached her husband the later told her that he has been assaulted by the two accused Appellants Utpal Nath and Jiten Das. P.W. 3 also saw P.W. 8 near her husband. As stated above, P.W. 8 has turned hostile and did not support the prosecution. The other witnesses also arrived in the meantime and her husband Dwipen Nath was carried in a handcart to Sorbhog hospital.

9. In the present case, we find that there is no eyewitness to the actual assault. Even the wife of the deceased who was first to arrive did not see the actual assault. However, she has deposed about the presence of the accused persons and she has also deposed that the two accused persons were last seen with the de