J.N. SARMA, J. — This appeal has been filed against the judgment dated 9.5.91 passed by the learned Addl. Sessions Judge, Nagaon in Session Case No. 38/87. By the impugned judgment, learned Judge accutted the accused persons from the charges u/s 3417 302/114/34 IPC. 2. The accused persons were Abdul Jalil and Ayub Ali. The brief facts are as follows: 3. On 25.5.86 an ejahar (Ext.2) was lodged before the O/C Nagaon P.S. by one Jalaluddin stating that when he was sitting at his residence by the side of a sarkari road leading to Rupahi, at that time accused Abdul Jalil stabbed his brother Jalaluddin in the abdomen while he was returning from Herapatty. On hearing his alarm, PW-2 Rabi Hussain, PW Akbar AH and the informant himself rushed to the spot and they saw that the accused Jalil running away from place of occurrence. Jamaluddin, the deceased, told that Jalil struck in his belly with a knife. They also saw co-accused Ayub Ali near the place of occurrence. They shifted the injured Jalaluddin to Nagaon Civil Hospital and thereafter PW-1 lodged a verbal ejahar which was drawn up by PW-6 and thereafter, case was registered u/s 341/326 IPC against accused Abdul Jalil. Thereafter, investigation started, requisition was sent for with regard to recording dying declaration of the injured. PW-4 Dr Nurul Islam recorded the dying declaration, Ext. IA on 26.5.86. On 26.5.86 the IO visited the place of occurrence and drew up sketch map ext. 5. During investigation, the injured succumbed to injury, and as such, S. 302 IPC was added against the accused. The IO held the inquest on 27.5.1986. PW-4 Dr. Nurul Islam, M&H O.I. performed the post-mortem examination on the dead body on 28.5.86. He found a stitched wound over the right side of the chest in eight interestal space about 1" in length. In his opinion bleeding due to the injuries was the cause of death. 4. PW-7 Nurul Islam, ASI of police handed over the case diary to the O/C. Thereafter PW-5 took up the investigation. On 13.11.86 he arrested co-accused Ayub Ali. 5. Accused Abdul Jalil surrendered in the Court on 5.6.86. He was remanded in hajat. Another accused Abdul Latif was also arrested. However, all of them were allowed to go on bail. 4. PW-7 Nurul Islam, ASI of police handed over the case diary to the O/C. Thereafter PW-5 took up the investigation. On 13.11.86 he arrested co-accused Ayub Ali. 5. Accused Abdul Jalil surrendered in the Court on 5.6.86. He was remanded in hajat. Another accused Abdul Latif was also arrested. However, all of them were allowed to go on bail. After completion of investigation, police submitted charge sheet on 18.11.86 against Abdul Jalil and Ayub Ali to face trial u/s 341/302/114/34 IPC. Thereafter, the case was committed to the Court of Sessions on 28.1.87. . 6. The prosecution examined 7 witnesses who were cross-examined by defence. In his statement u/s 313 Cr.P.C. accused Abdul Jalil states that he does not know anything and was falsely implicated. Accused Ayub Ali states that while he was going through the 'Tiniali' he heard Jalal's shouting. He was pressed by Rabi Hussain to say that it was Jalil who stabbed Jalaluddin. As he declined he was falsely implicated. The accused however declined to adduce any evidence. 7. The learned Judge rejected two dying declarations Ext. 1 recorded by PW-4 Dr. Nurul Islam and recorded by IO i.e. Ext-1A. Regarding rejection of Ext. 4, the ground given by the learned Judge was that it was recorded while the injured was in the Civil Hospital and the IO cannot record dying declaration without obtaining permission of the Hospital authority. Reliance was placed in this connection i.e. (1986)1 GLR NOC 5 (The State of Assam-Vs-Hazarat AH & others). Another ground to disbelieve the dying declaration was that the IO did not say anything whether the injured was in a fit position to speak. 8. Regarding other dying declaration i.e. Ext. 1A it is disbelieved on the ground that he did not mention the relevant PS case No. in the statement and he also did not endorse L.T.I, of declarant by putting his signature. It was contended that Ext.-lA was not related to the present case and ultimately that was rejected on the ground that the dying declaration was not recorded at a point of time when the injured was facing death. The injured died on 26.5.86 after 24 hours of the accident. And thereafter, the accused persons were acquitted. 9. I have heard Mr N. Mahammad, learned counsel for appellant and Mr J.M. Choudhury, learned counsel for accused persons. 10. The injured died on 26.5.86 after 24 hours of the accident. And thereafter, the accused persons were acquitted. 9. I have heard Mr N. Mahammad, learned counsel for appellant and Mr J.M. Choudhury, learned counsel for accused persons. 10. Mr J.M. Choudhury, learned counsel rightly places reliance on (1996)10 SCC 79 (Dhanna-Vs-State of M.P.) wherein the Supreme Court laid down the following principles regarding interference of the appellate Court in a case of acquittal. In para 11 of that judgment it has been held as follows: "Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at his own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate Court has to bear in mind: first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus the appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is. liable to be interfered with or disturbed. (Durgacharan Naik-Vs-State of Orissa. Castano Piedade Fernandez-Vs-Union Territory of Goa. Daman & Diu, Tola Singh-Vs-State of Punjab, Awadhesh- Vs-State of M.P. and Ashok Kumar-Vs-State of Rajasthan)." 11. In deciding this matter, we shall have to bear in mind the guidelines/principles enunciated by the Supreme Court. Another aspect of the matter which we must bear in mind is that incident is of the year 1986 and today we are in 2002. The accused persons are free citizen from 1991 and if we send them behind the bar as on 2002, whether that shall be justice or not. Another aspect of the matter which we must bear in mind is that incident is of the year 1986 and today we are in 2002. The accused persons are free citizen from 1991 and if we send them behind the bar as on 2002, whether that shall be justice or not. I will discuss the evidence below and if I find there is evidence as against accused persons, this delay in disposal of the appeal shall be no bar to set aside the order of acquittal. Now let us discuss the evidence. 12. The dying declaration Ext. 1A which was discarded by the learned Judge was recorded by Dr. Nurul Islam, the Medical and Health Officer of Nagaon Civil Hospital and it was recorded in presence of another Dr. S. Bhattacharyya and in the dying declaration there is a clear statement stating that Abdul Jalil stabbed the deceased and along with him there was Ayub AH, the co-accused and it was further stated that Jalil after stabbing the deceased, fled away from the scene. This dying declaration was recorded in pursuance of a requisition sent by the police authority vide Ext. 3 and the certificate states as follows: "Dying declaration recorded by me in S WI, Nagaon Civil Hospital at 6,30 p.m. today on 26.5.86 in presence of Dr. S. Bhattacharyya." 13. The criticism advanced by the learned counsel for respondent is as follows: That this dying declaration does not show that the deceased was in a position to make declaration and to that effect there is no statement in the dying declaration. 14. PW-4 Dr. Nurul Islam, who recorded the dying declaration was examined and he deposed as follows: "On 26.5.86 on requisition by police I recorded the dying declaration of Jalaluddin s/ o Hazarat Ali at Nagaon Civil Hospital at 6.30 p.m. in presence of Dr. S. Bhattacharyya of Nagaon Civil Hospital. Ext.-lA is the dying declaration Ext.-lA(l) is my signature. Dr. Bhttacharyya also put his signature as witnesses to this dying declaration. Ext.-lA(2) is the signature of Dr. S. Bhattacharyya as a witness to the dying declaration. Ext.-lA(3) is the thumb impression of the declaration with my endorsement. He was in a position to speak." 15. So, he was categorically stated that the deceased was in a position to speak. Dr. Bhttacharyya also put his signature as witnesses to this dying declaration. Ext.-lA(2) is the signature of Dr. S. Bhattacharyya as a witness to the dying declaration. Ext.-lA(3) is the thumb impression of the declaration with my endorsement. He was in a position to speak." 15. So, he was categorically stated that the deceased was in a position to speak. And in the cross-examination there is not even a suggestion to show that this person was not in a position to speak. So, this criticism as advanced by the learned counsel for respondent that this dying declaration cannot be t$ken into consideration is not correct. 16. Mr J.M. Choudhury, learned counsel places reliance on AIR 1999 SC 3455 (Paparambaka Rosamma and others, appellants-Vs-State of Andhra Pradesh, respondent) and in that case it has been laid down as follows: "In the absence of medical certificate that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration." 17. That is not the position in the case in hand. The injured was in a position to speak and that has been testified by the Doctor. Further, earlier to it, there was another declaration made before the IO and that almost verbatim same with the subsequent declaration recorded by the Doctor. 18. In order to appreciate the evidentiary value of the dying declaration, Mr J.M. Choudhury, learned counsel places reliance on AIR 1988 SC 1158 (Awadhesh and another-Vs-State of Madhya Pradesh) wherein the Supreme Court pointed out that inconsistency between medical and ocular evidence, opinion of Doctor that person who caused injuries to deceased was at higher level than deceased, not consistent with testimony of eyewitnesses. Medical expert's opinion corroborated by other circumstances indicating that eyewitnesses had not seen the actual occurrence, conviction is improper. 19. That case is of us help to the accused inasmuch as a bare perusal of the evidence of the Doctor, who conducted post-mortem examination found the following injuries: "A stitched wound over the right side of the chest in 8th intercostal space about 1" in length was found. On removing the stitches the edges of the wound was found sharp. That case is of us help to the accused inasmuch as a bare perusal of the evidence of the Doctor, who conducted post-mortem examination found the following injuries: "A stitched wound over the right side of the chest in 8th intercostal space about 1" in length was found. On removing the stitches the edges of the wound was found sharp. On further opening of the wound underlying tissues and muscles were found to be incised. The pleasure underneath was performed with ante-mortem blood clots found to be adherent to the tissues. The right plural cavity contained blood clots. Thorax: Right lung: passive collapse of right, mid and lower lobes. Heart: Empty. All the injuries were ante-mortem in nature. In my opinion death was due to shock and hemorrhage as a result of injury sustained." 20. There is only one injury and that also is in the dying declaration. So there is no inconstancy between the medical evidence and the dying declaration, rather the dying declaration is corroborated by the medical evidence. So, I accept Ext.-1A is legal and valid dying declaration. The law as indicated above is that even on the basis of solely on the dying declaration, a conviction can be given. Further, in this case there is corroboration of the incident from the evidence of PW-1 who stated that he heard a cry of his brother Jalal as follows: "Jalil has stabbed him in the belly with a knife and he rushed to the spot and saw that Jalil ran away from the scene." 21. PW-2 Rabi Hussain deposed that he also heard a cry as follows: "Jalil has stabbed him." He immediately rushed to the place of occurrence and on the focus of the torch light, he could recognise accused Jalil. Jalil ran away when he focused the torch and this witness also saw in the hand of the accused Jalil a dagger measuring 8-10" length. 22. PW-3 is Akbar Ali. He deposed that Jalal, the deceased states before me that Jalil has stabbed him in the belly with a knife. 23. On the basis of these materials as discussed above and also on the basis of the dying declaration as indicated above, I hold that the guilt against Jalil has been proved beyond all reasonable doubt. There is absolutely no evidence as' against co-accused Ayub Ali. He did not take part in the incident. 23. On the basis of these materials as discussed above and also on the basis of the dying declaration as indicated above, I hold that the guilt against Jalil has been proved beyond all reasonable doubt. There is absolutely no evidence as' against co-accused Ayub Ali. He did not take part in the incident. He was only standing near the deceased. As a matter of fact, Ayub accompanied the deceased from the market. So, I hold Jalil to be guilty of the offence. But the next question is what should be the sentence. From the medical report it appears that there was only one stab injury and as such, it cannot be a case u/s 302 because he did not have the intention to cause the death. I hold it to be a case u/s 304 Pt-II and accordingly I sentence him to RI for 4 years and a fine of Rs.5,000/- in default, RI for 6 months. Necessary warrant of arrest shall be issued for the arrest of the accused Abdul Jalil so that he may undergo the sentence. 24. With this direction and observation^ this appeal against the acquittal of accused Abdul Jalil is allowed, other part of the appeal with regard to Ayub Ali shall stand dismissed.