JUDGMENT :

(M. Zothankhuma, J.)

1. Heard Mr. B. Nath, learned Amicus Curiae. Also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State.

2. This appeal has been filed against the impugned Judgment & Order dated 24.01.2018 passed by the learned Additional Sessions Judge, Dibrugarh, in Sessions Case No. 60/2015, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 10,000/-, in default, to undergo further simple imprisonment for 6 (six) months.

3. The Prosecution case in brief is that an FIR dated 11.01.2012 had been lodged by PW-8, who was the Acting Manager of Green Wood Tea Estate to the Officer In-charge, Mohanbari Police Outpost under Lahoal Police Station. The FIR stated that it had been reported by the Line Chowkidar, PW-1 that Samaru Karmakar (deceased) had been assaulted by the appellant on 10.01.2012 at 4:30 p.m. The deceased was immediately shifted to Garden Hospital and from there he was referred to Assam Medical College & Hospital (AMCH) Dibrugarh. At 3:30 a.m, he was declared dead.

4. Pursuant to the FIR, Mohanbari GDE No. 183 and Lahoal P.S. Case No.3/2012 under Section 302 were registered. The Investigating Officer after completion of his investigation filed a charge-sheet, as he found a prima facie case under Section 302 IPC against the appellant.

5. Charge was framed under Section 302 IPC against the appellant, to which the appellant pleaded not guilty and claimed to be tried.

6. Thereafter, 9 (nine) Prosecution witnesses were examined by the learned Trial Court. After examination of the appellant was done under Section 313 Cr.P.C, the impugned Judgment and Order was passed by the learned Trial Court.

7. The learned Amicus Curiae submits that the appellant has been found guilty of the crime only on the basis of the dying declaration of the deceased, which does not contain the date and time when the said dying declaration was recorded. Also the deceased did not give his signature or thumb impression on the alleged recorded dying declaration. He further submits that the evidence of PW-1 is to the effect that the deceased had died in the Tea Garden Hospital and the dead body of the deceased had been taken to the AMCH, Dibrugarh. He also submits that the Inquest Report, which was exhibited as Ext.1, would prove the deceased died in the Tea Garden Hospital. He also submits that the Doctor, PW- 6, had stated in his cross-examination that the dying declaration was recorded in the operation theatre, while PW-7, who is a Naik in the Assam Police had stated that the dying declaration was recorded by the attending doctor in the general ward of the ENT Department. He thus submits that the place where the dying declaration was made is not clear from the above deposition of the prosecution witnesses. Accordingly, there is no proof that the dying declaration was actually made and if it was made, the dying declaration has been made under suspicious circumstances. Thus, the same cannot be regarded to be truthful and voluntary. It cannot also be made the basis for convicting the appellant.

8. Ms. S. Jahan, the learned Additional Public Prosecutor, on the other hand submits that though there appears to be a discrepancy in the evidence of PW-1, vis-a-vis the evidence of the other prosecution witnesses, with regard to whether the deceased had died prior to reaching the AMCH, Dibrugarh, the evidence of the other witnesses clearly proved that the deceased had been attended to in AMCH, Dibrugarh and that he had given his dying declaration in AMCH, Dibrugarh, prior to his death. She also submits that the fact that the appellant was the perpetrator of the crime is proved due to the dying declaration made by the deceased. Further, the weapon used in the crime, i.e. Dao, was also seized from the house of the appellant. She also submits that