GOBINDA CHANDRA CHATTERJEE, J. ( 1 ) THIS appeal is directed against an order dated 19. 5. 1980 passed by the learned Additional Sessions Judge 12th Court Alipore in Sessions Trial No. 11 (5) of 1979 whereby the appellants Amar Ghosh and Ananda Das were found guilty to the charge under section 304, Part II read with section 34 I. P. C. and sentenced to 1 years R. I. They were charged under the aforesaid sections for having caused the death of one Hossain Ali Gazi by mercilessly beating with lathi and split bamboo in furtherance of their common intention on the dead of night on 24th/25th April, 1978 at village Dhaltitha within P. S. Basirhat. The prosecution case stood as follows: Hossain Ali Gazi (deceased) and the appellants were local residents of the village Dhaltitha. The appellant Ananda was at the relevant time a servant of Putiram Ghosh the father of the other appellant Amar Ghosh. Hossain Ali Gazi was stealthily stealing some mangoes from the mango- grove of Putiram in that dead of night. This was found out by Amar and Ananda. Amar and Ananda got furious over the matter and they along with others beat him mercilessly with a lathi and a spilt bamboo so much so that he fell down unconscious on the spot and died soon after he was sent to local hospital. On the same dead of night Kasem Ali Gazi (P. W. 1) son of Hossain Ali Gazi (deceased) visited the spot. He found that his father was severally beaten and that he was lying unconscious on the ground. Kasem Ali lodged a G. D. Entry which was marked as ext. 3 at 8 hours in the morning. At about 10 a. m. Kasem gave a written statement which was treated as the F. I. R. of the case (ext. 1 ). The injured expired in the hospital towards the afternoon of 2nd April 1978. Blood stained lungi from the dead body was recovered and seized. Witnesses were examined in due course of investigation and charge-sheet was submitted against the two appellants and 3 others under sections 342 and 304, Part 11/34 I. P. C. The learned Additional Sessions Judge who tried the case was pleased to acquit 3 of the accused persons under section 232 Cr. P. C. and the remaining 2 were however convicted and sentenced as already indicated before. P. C. and the remaining 2 were however convicted and sentenced as already indicated before. Being aggrieved thereby the two appellants have come up in appeal before us. ( 2 ) MR. Biplab Mitra, learned advocate appearing for the two appellants has contended before that the G. D. Entry dated 25. 4. 1918 lodged by P. W. 1 (ext. 3) being earlier in point of time ought to have been treated as the F. I. R. in this case in place of the written statement of P. W. 1 which was recorded subsequently at 10 a. m. on 25. 4. 1978. Mr. Mitra is right. For investigation of the case was started on the basis of the G. D. (ext. 3) which was an earlier document in point of time. The written information (ext. 1) being inadmissible ought not to have been treated as F. I. R. (ext. 1) at all. Mr. Mitra has further contended that although as many as 18 P. Ws. were examined at the trial, none of them could actually vouch safe that he had seen the appellants or any of them actually assaulting the victim by a lathi and a spilt bamboo. In the absence of any eye witness, the trial court according to Mr. Mitra ought not to have convicted the appellants in the way it did. It has been argued by Mr. Mitra that P. W. 1 Kasem Ali Gazi, son of the deceased ought not to have been believed at all by the trial court seeing that he was not present on the spot on that alleged night at all Reference was made in this connection to the cross-examination of P. W. 2 Jahar Ali Gazi who stated that he did not see Kasem on that night. Lastly, it has been argued that the learned trial court erred in the matter of relying upon the alleged dying declaration (ext. 4) inasmuch as that declaration was recorded by the 1. 0. (P. W. 18) Priyasankar Ray without the aid and assistance of any magistrate or doctor whatsoever. ( 3 ) WE have given our best consideration to the aforesaid contentions of Mr. Mitra. We are however unable to accept his submissions. We assign the following reasons for our view. We have carefully perused the G. D. Entry (ext. 0. (P. W. 18) Priyasankar Ray without the aid and assistance of any magistrate or doctor whatsoever. ( 3 ) WE have given our best consideration to the aforesaid contentions of Mr. Mitra. We are however unable to accept his submissions. We assign the following reasons for our view. We have carefully perused the G. D. Entry (ext. 3) and we have satisfied ourselves to see that the material ingredients of the offence under section 304, Part II, I. P. C. are all there in the G. D. Entry. In the G. D. Entry for example it has been mentioned in clear term, that Amar Ghosh and his party-ment assaulted and injured the victim. We shall see presently that the facts and circumstances of the case unmistakeably show that none but Amar and Ananda could beat the victim at that dead of night. With regard to the dying declaration, we shall make our comments hereinafter in detail. For the present it would suffice our purpose to say that the learned trial court did not entirely rely upon the dying declaration (ext. 4) and that the court merely treated the same as a corroborative piece of evidence. ( 4 ) MR. Mitra, learned advocate for the appellants took us through the oral evidence as adduced by 18 P. Ws. He also took us through the statements of the appellants recorded under section 313 Cr. P. C. It would transpire there from that there was no dispute to the fact that on the dead of night of 25th April, 1978 Hossain Ali Gazi was assaulted and injured so much so that he lay unconscious near a mango grove. A mango plucking pole was lying nearby. Some plucked mangoes lay within a basket by his side. The 2 appellants and 20 others had been to that spot on that dead of night. All these things were not disputed at the trial court. The only thing that was hammered by the defence was that the two appellants did not strike the victim themselves. ( 5 ) MISS Parul Banerjee, learned advocate appearing for the State, has invited our attention to the evidence of P. W. 2, P. W. 3, P. W. 5 and P. W. 8 and has argued that these witnesses being local residents were perfectly trust-worthy. ( 5 ) MISS Parul Banerjee, learned advocate appearing for the State, has invited our attention to the evidence of P. W. 2, P. W. 3, P. W. 5 and P. W. 8 and has argued that these witnesses being local residents were perfectly trust-worthy. They had no grudge or animosity against the two appellants and that their evidence was therefore rightly accepted as true by the learned Additional Sessions Judge. Miss Banerjees argument has impressed us. Indeed there is no reason as to why we should disbelieve all the aforesaid witnesses who appear to be really disinterested in all respects. The evidence of P. W. 2 Jahar Ali Gazi is that Ananda had a spilt bamboo and Amar had a lathi in his hand and that they were standing at the P. O. along with others. Jahar specifically saw Amat giving a lathi blow on Hossain Ali Gazi Putiram, the father of Amar disclosed before him at the spot that Hossain Ali Gazi was beaten up bu his son Amar and his servant Ananda. On these points no cross- examination however was made on behalf of the defence. It may be recalled that it was from this Putiram Ghosh's mango-grove that Hossain was attempting to steal some mangoes on that dead of night. A mango plucking pole and a basket containing some plucked mangoes were admittedly lying nearby. Who would therefore assault Hossain Ali Gazi excepting the son and the servant of Putiram Ghosh? The evidence of P. W. 3 Ramjan is similar to that of P. W. 2. He said that Hossain was lying unconscious on the ground, that Putiram, Amar, Ananda and others were standing there and that in his presence Amar gave one lathi blow on Hossain. His further evidence is that Ananda was carrying a lathi and Amar a spilt bamboo. These points too were not traversed in the crossexamination. Unchallenged also, goes the evidence in chief of Kanai Gazi (P. W. 5) who gave out that on that dead of night he found Putiram, Amar, Ananda etc. standing under a mango tree, that Hossain was found lying injured on the ground and that Amar and. Ananda had in their hands a lathi and a spilt bamboo respectively. Ananda and, Amar made an, extra-judicial confession before him by saying that they had beaten Hossain because Hossain came, there to steal their mangoes. standing under a mango tree, that Hossain was found lying injured on the ground and that Amar and. Ananda had in their hands a lathi and a spilt bamboo respectively. Ananda and, Amar made an, extra-judicial confession before him by saying that they had beaten Hossain because Hossain came, there to steal their mangoes. The cross-examination of this witness remained absolutely silent regarding all these points in evidence in chief as disclosed above. No less important is the evidence of Akbar Ali Gazi (P. W. 6) who stated that atleast he saw Ananda and Amar carrying spilt bamboo and lathi in their hands, although none else was found to be so, equipped with weapons. This part of his evidence was also not assailed in cross- examination. P. W. 8 Sarbat Ali Gazi was declared hostile by the prosecution but even then this witness gave out that he had seen Amar carrying a lathi in his hand. It is indeed difficult to believe that all these disinterested local witnesses perjured themselves unnecessarily over the incident leading to the death of their neighbour Hossain Ali Gazi. The learned trial court believed the testimony of these disinterested witnesses and came to the conclusion that the offence was committed by Amar and Ananda. We do not find any good reason to discard the view taken by the learned Additional Sessions Judge in the matter. ( 6 ) THE view gets an additional support from the contents of the dying declaration (ext. 4 ). The statement was recorded by Priyasankar Ray (P. W. 18), 1. 0. of the case at Basirhat hospital where the injured breathed his last in the afternoon of 25th April, 1978. Mr. Mitra has drawn our attention to the fact that this declaration was not recorded in question and answer form. He has further argued by saying that in his evidence the 1. 0. never cared to explain as to why the assistance of a local magistrate or doctor was not called for at that hospital. Mr. Mitra has drawn our attention to the Supreme Court case reported in Delhi Administration v. Laxman Kumar and others,1 and has argued that in that reported case the facts were very much the same. We have carefully perused that bride burning case. Seemingly there are indeed some points of superficial semblance in these two cases. Mr. Mitra has drawn our attention to the Supreme Court case reported in Delhi Administration v. Laxman Kumar and others,1 and has argued that in that reported case the facts were very much the same. We have carefully perused that bride burning case. Seemingly there are indeed some points of superficial semblance in these two cases. Thus in both the cases the declaration was recorded by a police officer (1. 0. ). The entire recording was again made in question and answer form. Nevertheless the reported case had some distinguishing features of its own. In the reported case for example the very authenticity of the document of dying declaration appeared to be extremely doubtful both before the trial court as also the Supreme Court. Secondly in the reported case the doctor (d. w. 1) of the hospital was sitting by the side of the 1. 0. and the latter did not request the doctor to record that dying declaration. Thirdly, in that reported case under relevant rules applicable to Delhi Area, the 1. 0. was precluded from recording the dying declaration himself. In the instant case with which we are dealing here, such disabling rule is significantly absent. The ruling relied upon by the appellants does not thus, help them very much. It would appear from the judgment of the learned trial court of our case that the court treated ext. 4 not as conclusive but as a corroborative piece of evidence. The learned trial court stated, the statement of the deceased which is ext. 4 has been fully corroborated from the evidence of the witnesses who went to the place of occurrence hearing the shouts of marpit on Hossain Ali Gazi. We have already indicated before that the oral evidence adduced by some of the disinterested local residents was by itself enough to justify the conviction of the two appellants under section 304 Part II. I. P. C. For the reasons so far disclosed we are thus of opinion that the learned trial court was perfectly justified in convicting the appellants of the offence under section 304. Part II. I. P. C. ( 7 ) MR. Mitra has craved for our taking a lenient view in respect of the sentence inflicted upon his clients. Each of his clients was sentenced to 5 years R. I. Mr. Mitra wants that the sentence should be a little less. Part II. I. P. C. ( 7 ) MR. Mitra has craved for our taking a lenient view in respect of the sentence inflicted upon his clients. Each of his clients was sentenced to 5 years R. I. Mr. Mitra wants that the sentence should be a little less. This part of the contention raised by Mr. Mitra has impressed us. From the record, it would appear that a similar prayer was made before the learned Additional Sessions Judge. From the evidence of the doctor conducting postmortem (D. W. 12) we gather that the dead-body bore as many as 7 injuries. We have strong reasons to believe that all these injuries were inflicted not only by the two appellants but by several others acting conjointly in the matter in the heat of the moment. We find that while Amar Ghosh is aged 26 years. Ananda Das is only 22 years. We cannot forget that the time was mid night. We take into consideration the further fact that the victim was a local resident. Stealthily he stepped into the mango garden of Putiram at that mid night with the object of dishonestly plucking mangoes from the garden. The entire matter appeared to be obnoxious so much so that the victims son Kasem himself burst out in anger at the P. O. and gave out that he would take away his injured father to his house and would poison him to death. We have given our best consideration to the over all facts and circumstances of the case and to our mind it appears that the sentence of 4 years R. I. will be sufficient to meet the ends of justice in this case. In place of 5 years R. I. we do prescribe that each of the appellants should undergo R. I. for four years. The appeal stands allowed to this extent only. ( 8 ) IN the result the appeal is allowed in part in so far only that while we maintain the conviction of the appellants, we reduce the sentence to the period of four years R. I. each in place of 5 years R. I. each. The two appellants being on bail their bail bonds shall stand cancelled forthwith. It is needless to add that both the appellants will get the benefit of set off under section 428 Cr. P. C. Appeal allowed partly.