Judgment :- K.N. Basha, J. The sole appellant in this case, who has been originally arrayed as A-1, has preferred this Appeal questioning the legality of the Judgment of conviction and sentence passed by the learned Additional Sessions Judge, Thanjavur, in S.C. No.113 of 2002 dated 04.03.2003 convicting him under Section 341 I.P.C. (1 count), and sentencing him to undergo simple imprisonment for one month and also convicting him under Sections 302 r/w 34, I.P.C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months. The learned Trial Judge ordered the sentences to run concurrently. 2. There were two accused in this case and the second accused was tried separately in S.C. No.40 of 1998 as the appellant (A-1) was absconding and that case was ended in acquittal on 01.12.1998 on the ground that the name of the second accused was not mentioned by the deceased in the Dying Declaration. 3. The brief facts of the case, as unfolded during the course of the trial, are as follows : (i) PW.2 is the wife of the deceased. PW.3 is the brother of the deceased. PW.4 is the wife of PW.3. It is stated by PW.3, brother of the deceased that the deceased was already having one wife, viz. , Malliga. PW.2 is the second wife of the deceased. PW.2 has turned hostile and she has not supported the case of the prosecution. PW.2 is said to have given a report under Ex.P.17. A perusal of the report given by her under Ex.P.17 shows that the accused (A-1) was having enmity with the deceased keeping the wife of the accused (A-1) as a concubine and therefore, he has decided to kill the deceased. (ii) The prosecution placed reliance on the evidence of PW.2 to 6 as eye-witnesses but, unfortunately, all the eye-witnesses viz. , PWs.2 to 6 have turned hostile. The entire case of the prosecution is, therefore, left with the Dying Declaration, Ex.P.11, recorded by the Judicial Magistrate. (iii) PW.13, the Head Constable, attached to the Thanjavur West Police Station received a telephonic message on 24.02.1995 at 10.45 a.m. about the admission of the deceased in the hospital, as he was assaulted by two known persons with knife. He had made entry in the general diary and placed the same before the Sub-Inspector of Police. (iii) PW.13, the Head Constable, attached to the Thanjavur West Police Station received a telephonic message on 24.02.1995 at 10.45 a.m. about the admission of the deceased in the hospital, as he was assaulted by two known persons with knife. He had made entry in the general diary and placed the same before the Sub-Inspector of Police. (iv) PW.14, Head Constable perused the general diary on 24.02.1995 at 9.45 p.m., and thereafter, went to Thanjavur Medical College Hospital and found the deceased admitted in the hospital with the blood stained injuries. (v) PW.16, the Sub-Inspector of Police, attached to the Thanjavur West Police Station also received the information about the occurrence and perused the general diary of the police and thereafter, he went to the Thanjavur Medical College Hospital. The deceased was taken to the surgical ward. There, he examined PW.2 wife of the deceased and recorded her statement under Ex.P.17. PW.2 is also to have produced M.O.1-blood stained dhoti and M.O.2-blood stained shirt said to have been used by the deceased. Thereafter, he returned to the Police Station and registered a case in Crime No.211 of 1995 under Sections 341 and 307, I.P.C. Ex.P.18 is the First Information Report. He sent copy of the F.I.R. to the Court and to the higher police officials. (vi) Doctor (PW.1) attached to the Thanjavur Medical College Hospital stated that the deceased was admitted on 24.02.1995 with bloodstained injuries. It is further stated that he was admitted in the surgical ward. At that time, the Judicial Magistrate came to the hospital and recorded Dying Declaration from 12.20 noon to 1.20 p.m. The Doctor, PW.1, also stated that he was present throughout recording of the Dying Declaration by the Magistrate and he also certified that the deceased was conscious and in a fit state of mind to give the Dying Declaration under Ex. P.1. P.W.1, Doctor, also stated that he had sent a message under Ex.P.2 to the Judicial Magistrate for recording Dying Declaration. (vii) PW.9, who is the Head Clerk, attached to the Judicial Magistrate No.I, Thanjavur, has stated that he had received the case properties through a constable. PW. 9 further stated that one Mr. Mani, was working as a Judicial Magistrate No.II, Thanjavur, and he was working as a translator under him. (vii) PW.9, who is the Head Clerk, attached to the Judicial Magistrate No.I, Thanjavur, has stated that he had received the case properties through a constable. PW. 9 further stated that one Mr. Mani, was working as a Judicial Magistrate No.II, Thanjavur, and he was working as a translator under him. He stated that he was having acquaintance with his signature and hand-writing and that Ex.P.11, Dying Declaration, was recorded by the said Judicial Magistrate. He also stated that he had signed the true copy of the Dying Declaration Ex.P.12. In Ex.P.12, Dying Declaration, it is stated that Jesu (A-1), son of Augustine and another person cut the deceased on his neck, stomach and chest. It is also sated that the deceased questioned the conduct of Jesu (A-1) selling arrack and on that ground, he stabbed him. (viii) PW.14, the Head Constable of Thanjavur West Police Station, stated that he has received the message over phone about the death of the deceased. On 25.02.1995 at 2.30 a.m., he made entry in the general diary and also informed to the Inspector of Police. PW,1, Doctor, has also stated that he sent the death intimation, Ex.P.3, to the police. (ix) PW.18 took up investigation in this case on 24.02.1995 at 4.00 p.m. after receiving the F.I.R. in this case. He went to the scene of occurrence and prepared Observation Mahazar, Ex.P.23 and Rough Sketch, Ex.P.24 at 6.00 p.m. He recovered blood stained earth, M.O.3, and sample earth, M.O.4, under Ex.P.25. He also examined the witnesses and recorded their statements. Thereafter, he went to Thanjavur Medical College Hospital and examined PW.2 and recorded her statement. He received the death intimation at 2.15 a.m. that the injured died. He altered the offence into one under Sections 341 and 302 r/w 34, I.P.C. He sent the First Information Report to the Magistrate Court. He held, inquest on the dead body of the deceased at 8.30 a.m. on 25.02.1995. Ex.P.26 is the Inquest Report. He sent the body through the constable for postmortem. He also examined doctors, P.W.1 and P.W.15 and recorded their statement. (x) Doctor, PW.17, conducted post-mortem on the dead body of the deceased on 25.02.1995 at 2.00 p.m., and found the following external injuries : “ 1. Ex.P.26 is the Inquest Report. He sent the body through the constable for postmortem. He also examined doctors, P.W.1 and P.W.15 and recorded their statement. (x) Doctor, PW.17, conducted post-mortem on the dead body of the deceased on 25.02.1995 at 2.00 p.m., and found the following external injuries : “ 1. An obliquely curved sutured incised cut wound with intact silk sutures noted over the right side neck extending from the angle of right side mandible upto 5 cms left lateral to the midline for a length of 16 cms. On dissection contusion over the under-lying soft tissues of neck, ribbon muscles of the neck. Reparative sutures noted over the muscles of the neck and upper traced rings. 2. A transversely placed sutured incised cut wound with intact silk sutures noted over the top of right shoulder region extending medially over the right infra-clavicular area of right side of front of chest for a length of 7 cms. On dissection it was found to have cut the underlying sub-cutaneous tissues and muscles only. 3. A vertically oblique sutured incised cut wound with intact silk sutures noted over the lateral aspect of middle third of right upper arm for a length of 11 cms situated 6 cms below the right shoulder. On dissection it was found to have cut the underlying muscles and subcutaneous tissues. 4. A transversely placed sutured stab wound with intact silk sutures noted over the right of front of chest, over the 7th inter-costal space on the anterior axillary line for a length of 3 cms in length. On dissection it was found to be of thoracic cavity deep. There was no injury to the underlying visceral organs. 5. An obliquely placed sutured stab wound with intact silk sutures noted over the right side of front of chest for a length of 3 cms situated 3 cms medial to the right nipple and 3 cms lateral to the midline. On dissection, it was found to have just entered the thoracic cavity. 6. An obliquely curved, sutured wound with intact silk sutures noted over the rignt side of upper abdomen for 11 cms length situated 4 cms lateral to midline and the lower end was situated 3 cms below and lateral to the ziphisternum. 7. On dissection, it was found to have just entered the thoracic cavity. 6. An obliquely curved, sutured wound with intact silk sutures noted over the rignt side of upper abdomen for 11 cms length situated 4 cms lateral to midline and the lower end was situated 3 cms below and lateral to the ziphisternum. 7. A surgically made sutured wound with intact silk sutures noted ever the midline of abdomen for a length of 23 cms extending from the level of ziphisternum just above the symphy-sis pubis. 8. A surgically made drainage wound with intact stay silk sutures and a rubber drainage tube in situ noted over the lower part of right side flank of front of abdomen. 9. A surgically made drainage wound with intact silk sutures and a rubber drainage tube in situ noted over the back of left side flank of abdomen. 10. Two surgically made incised wounds with intact silk sutures noted over both ankles on their front and medical aspects (I.V. cut downwards). 11. Superficial incised cut wound over the right scapular area upper part for a length of 7 x 1/2 x 1/2 cms. Internal Injuries : On dissection of chest and abdomen : Reparative silk sutures noted over : 1. Lesser curvature of the stomach for 3 cm length. 2. Lower part of antero superior surface of right lobe of lover for a length of 9 x 1/2 x 2 cms. 3. Body of the pancreas for a length of 2 x 1/2 x 1 cm. 4. Anterosuperior surface of left kidney for a length of 6 x 1 x 1 cms obliquely placed. 5. Contusion over the root of the mescptery 10 x 8 cms. Multiple contusions of various sizes over the upper coils of small intestine. 6. Retroperitoneal contusion over both sides of whole of abdomen. Fingernails pale. Heart : Normal in size. All the chambers contained few ml of fluid blood. Valves Normal. Coronary vessels patent. Great vessels normal. Lungs : C/s pale. Larynx: intact. Hyoid bone : intact. Stomach: contained 150 ml of reddish brown coloured fluid. Mucosa pale No specific smell made out. Liver, Spleen, Kidneys were pale. Small Intestine: empty. Mucosa: normal. Bladder: empty. Brain: C/s pale. The Doctor opined that due to shock and loss of blood the deceased would have died. Ex.P.20 is the Post-Mortem Certificate, Ex.P.21 is the xerox copy of the Post-Mortem Certificate. Mucosa pale No specific smell made out. Liver, Spleen, Kidneys were pale. Small Intestine: empty. Mucosa: normal. Bladder: empty. Brain: C/s pale. The Doctor opined that due to shock and loss of blood the deceased would have died. Ex.P.20 is the Post-Mortem Certificate, Ex.P.21 is the xerox copy of the Post-Mortem Certificate. (xi) In continuation of his investigation, PW.18 examined the Sub-Inspector of Police and constable on 26.02.1995 and recorded their statements. He examined some more witnesses on 27.02.1995 and on 28.02.1995 and recorded their statements. Ho arrested the accused on 04.03.1995 at 10.15 a.m. In pursuance of the admissible portion of the confession of the accused under Ex.P.17, he recovered M.O.5 knife in the presence of witnesses under Ex.P.28. Thereafter, he remanded the accused to the judicial custody. He examined the doctors again on 07.03.1995. On 20.03.1995, he arrested the second accused, viz., Sekar, who had been tried separately. He remanded that accused for the judicial custody. On 03.04,1995 he sent requisition for the Judicial Magistrate to send the Material Objects for chemical analysis. Ex.P.29 is the requisition. Ex.P.31 is the Chemical Report. Ex.P.32 is the Serological Report. On 24.08.1995 completing his investigation, PW.18, Inspector of Police, filed the charge-sheet against the accused under Sections 341, 302 r/w 34, I.P.C. 4. The prosecution, in order to substan-tiate its case, examined PWs.1 to 18, filed Exs.P.1 to P.33 and marked M.Os.1 to 5. 5. When the accused was questioned under Section 313, Cr.P.C. in respect of the incriminating circumstances appearing against him, the accused has come forward with the version of total denial. He had not chosen to examine any witness on his side. 6. Mr. A. Padmanaban, learned counsel for the appellant vehemently contended that the prosecution has miserably failed to establish the guilt of the accused/the appellant by adducing acceptable evidence and put forward the following contentions : (1) All the eye-witnesses, P.Ws.2 to 6 turned hostile and therefore the prosecution left only with the Dying Declaration, Ex.P.11 and that Dying Declaration is also not proved by the prosecution. (2) The original Dying Declaration, Ex.P.11, was destroyed by the white-ants and therefore it is not safe to place reliance on it. (3) The Judicial Magistrate who recorded the Dying Declaration, Ex.P.11, also died pending trial and therefore there is no opportunity for the defence to cross-examine the Magistrate who has recorded the Dying Declaration Ex.P.11. (2) The original Dying Declaration, Ex.P.11, was destroyed by the white-ants and therefore it is not safe to place reliance on it. (3) The Judicial Magistrate who recorded the Dying Declaration, Ex.P.11, also died pending trial and therefore there is no opportunity for the defence to cross-examine the Magistrate who has recorded the Dying Declaration Ex.P.11. (4) The evidence of the Doctor, P.W.1, who has given the certificate to the effect that the deceased was in a fit state of mind to give the Dying Declaration itself is not sufficient to place reliance on the Dying Declaration, Ex.P.11, in the absence of the evidence of the Judicial Magistrate who has recorded the Dying Declaration. (5) The particulars of the accused, viz. , address and other details were not mentioned in the Dying Declaration and therefore, the accused could not have fastened with the liability of causing the death of the deceased. The learned counsel also placed reliance in respect of this contention on the decision of the Apex Court reported in Gopal Singh And Another v. The State of Madhya Pradhsh And Another, AIR 1972 SC 1557 . (6) The doctor, PW.15, who has admitted the deceased In the hospital has not stated that the deceased informed him that he was attacked by a known person. (7) In the Dying Declaration, it was alleged that the other accused have also attacked and as such the appellant/ accused alone is not liable for the offence of murder of the deceased. (8) The medical evidence does not disclose that the injuries sustained by the deceased are sufficient in the ordinary course of nature to cause the death and therefore, the accused could not be held liable for the offence under Section 302 I.P.C. and he would be liable for conviction only under Section 304(II), I.P.C. The learned counsel placed reliance on the decision of the Apex Court in Ram Jattan and Others v. State of U.P., 1995 SCC (Cri.) 169. 7. Per contra, learnedAdditional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence. 7. Per contra, learnedAdditional Public Prosecutor contended that the prosecution has proved its case by adducing clear and cogent evidence. It is contended by the learned Additional Public Prosecutor that though the eyewitness, P.Ws.2 to 6 turned hostile, the prosecution established its case through the Dying Declaration, Ex.P.11, recorded by the Judicial Magistrate and the same is also endorsed by the Doctor, PW.1 to the effect that the deceased was conscious and in a fit state of mind to give the dying declaration. The Dying Declaration, Ex.P.11 is also corroborated by the medical evidence and by the evidence of P.W.9 and therefore, there is no impediment to place reliance on the Dying Declaration, Ex.P.11. It is submitted by the learned Additional Public Prosecutor that though the Judicial Magistrate died during the pendency of the trial of this case, the prosecution has chosen to examine P.W.9, Head Clerk of the Judicial Magistrate Court, Thanjavur, to speak about the recording of the Dying Declaration by the Judicial Magistrate as he has acquaintance with the signature and hand-writing of the Judicial Magistrate and the true copy of the Dying Declaration, Ex.P.11 is marked as Ex.P.12. It is also pointed out by the learned Additional Public Prosecutor that the concerned Magistrate who has recorded the Dying Declaration was examined in the split up case in respect of the second accused as the present accused was absconding and in that trial in S.C. No.40 of 1998 he has given evidence and in that evidence he has clearly stated about the recording of the Dying Declaration, Ex.P.11 and that deposition in this case is marked as Ex.P.33. The learned Additional Public Prosecutor also placed reliance on the decision in a case in Nirmal Singh v. State of Haryana, 2000 Crl.L.J. 1803, to the proposition that under Section 299, Cr.P.C. deposition of deceased witnesses can form basis of convictio. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the impugned judgment of conviction and the entire materials available on record. 9. The prosecution in this case initially placed reliance on the evidence of the eye-witnesses, P.Ws.2 to 6 and also on the Dying Declaration, Ex.P.11 recorded by the Judicial Magistrate. But all the eyewitnesses, viz. , P.Ws.2 to 6 turned hostile and therefore, the prosecution is left with the solitary evidence of Dying Declaration, Ex.P.11. 9. The prosecution in this case initially placed reliance on the evidence of the eye-witnesses, P.Ws.2 to 6 and also on the Dying Declaration, Ex.P.11 recorded by the Judicial Magistrate. But all the eyewitnesses, viz. , P.Ws.2 to 6 turned hostile and therefore, the prosecution is left with the solitary evidence of Dying Declaration, Ex.P.11. Unfortunately, in this case, the Judicial Magistrate, who recorded the Dying Declaration also died pending trial of this case. It is pertinent to note at this juncture that there are originally two accused and the appellant herein has been arrayed as A-1 and as the appellant (A-1) was absconding the case was split up against the another accused, viz. , A-2 and he was tried separately in S.C. No.40 of 1998 and in that trial fortunately, the Judicial Magistrate, who has recorded the Dying Declaration, Ex.P.11 was examined and his deposition is marked as Ex.P.33 in this case and during the course of evidence in that trial the Judicial Magistrate Thiru. B. Mani, was promoted as Subordinate Judge, Trichy. The prosecution is, therefore, placed reliance on the deposition of the Judicial Magistrate in S.C. No.40 of 1998 as Ex.P.33 in this case, as stated above. The prosecution is also placed reliance on the evidence of P.W.9, Head Clerk of Judicial Magistrate Court, Thanjavur, as he was well acquainted with the signature and handwriting of the deceased Magistrate and the prose-cution has marked Ex.P.12, the true copy of the Dying Declaration through P.W.9. 10. Therefore, in view of the above stated facts, now we have to consider whether we can safely place reliance on the Dying Declaration, Ex.P.11, recorded by the Magistrate in the absence of the examination of the Magistrate to convict the accused. It is well settled, by a catena of decisions that if the Dying Declaration satisfies the Court regarding its credibility to the effect that it is free from any inducement to the deceased to make a false statement and if the same is coherent and consistent then there is no legal impediment to base conviction on the basis of such Dying Declaration without any corroboration. 11. 11. The Hon’ble Supreme Court of India has held in one of the earliest decisions in Munnu Raja and Another v. State of Madhya Pradesh, AIR 1976 SC 2199 that, — “It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration.” 12. The Hon’ble Supreme Court of India has held in yet another decision in a case in P.V. Radhakrishna v. State of Karnataka , 2003 (6) SCC 443 , that,— “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insist that the Dying Declaration should be of such a nature as to inspire the full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product o f imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the Dying Declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.” 13. Before proceeding to consider the reliability of the Dying Declaration recorded under Ex.P.11 and also true copy of the Dying Declaration under Ex.P.12, this Court is constrained to express its displeasure the way in which the original records were maintained by the Trial Court. The rule requiring corroboration is merely a rule of prudence.” 13. Before proceeding to consider the reliability of the Dying Declaration recorded under Ex.P.11 and also true copy of the Dying Declaration under Ex.P.12, this Court is constrained to express its displeasure the way in which the original records were maintained by the Trial Court. Unfortunately, in this case, several important and incriminating docu-ments against the accused were said to have been destroyed by white-ants and one such document said to have been destroyed by white-ants is the Dying Declaration, Ex.P.11. We have perused the original Dying Decla-ration, Ex.P.11 and it is seen that though some portion were destroyed by white-ants the incriminating portion, viz., mentioning the name of the accused, the appellant herein, found to be torn and subsequently the same was found pasted with a cello tape and we are able to read that the name of the appellant is mentioned as “Augustine son Jesu” and the other portion also visible to the effect that the same Augustine son Jesu along with another person stabbed the deceased with knife on his neck, stomach and chest. Therefore, there is a clear implication of the accused/appellant in the Dying Declaration, Ex.P.11 as the s ame is also found in the true copy of the Dying Declaration, Ex.P.12. 14. It is also pertinent to note at this juncture that in the earlier trial in respect of the very same case which was split up and tried against the other accused as the appellant herein was absconding, the learned Trial Judge has given the benefit of doubt to the other accused as the name of the other accused was nor mentioned in the Dying Declaration. 15. In this case, as pointed out by the learned Additional Public Prosecutor, the prosecution also placed reliance on the deposition of the Judicial Magistrate who has recorded the Dying Declaration from the deceased under Ex.P.11 given in the connected case tried in S.C. No.40 of 1998 in respect of the said accused and the same is marked as Ex.P.33. Section 299 of Cr.P.C, reads hereunder : “ Section 299. Section 299 of Cr.P.C, reads hereunder : “ Section 299. Record of evidence in absence of accused — (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try (or commit for trial), such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconve-nience which, under the circumstances of the case, would be unreasonable. (2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence con-cerning the offence and any depositions so taken may be given, in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.” 16. The learned Additional Public Prosecutor has rightly placed reliance on the above said Section and also placed reliance on the decision of the Hon’ble Supreme Court in a case in Nirmal Singh v. State of Haryana, 2000 Crl.L.J. 1803, and the Apex Court has held in that decision that,— “Evidence Act, S.33 – Evidence recorded in absence of accused – Admissibility –Sufficient material to establish that arrest of accused could not be procured as he was absconding – Records showed that summons were received back with report that witnesses have died – Preconditions of S.299 complied with – Deposition of deceased witnesses can form basis of conviction.” It is also relevant to note the provision of Section 33 of the Indian Evidence Act which reads hereunder : “ Section 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated — Evidence given by a witness in judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose or proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circum-sta nces of the case, the Court considers unreasonable : Provided — that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.” Therefore, even under Section 33 of the Indian Evidence Act, the prosecution is entitled to place reliance on the deposition of the Magistrate given in the connected proceedings in respect of the very same occurrence as such evidence is marked as Ex.P.33 in this case. 17. Apart from the above legal position, we have also come across yet another earlier decision of the Division Bench of Calcutta High Court in a case in Emperor v. Balaram Das, AIR 1922 Cal. 382 (2) that,— “Before referring to the evidence it is necessary to consider the point of law which arises with respect to an important part of it - the statement made by the deceased as to the cause of his death. The date of the alleged occurrence was the 28th November, 1917. This statement by Surendra was recorded on the 29th Novermber, 1917 at 10 P.M. by Babu Surendra Nath Ghosh, a Magistrate who has since died. When it was recorded the Assistant Surgeon, P.W.6, was present, and with reference to this statement he has given the following evidence : “Before the deceased died I wrote to the Magistrate to have his dying declaration recorded. The Sub-Deputy Collector, Surendra Nath Ghosh, came and recorded his dying declaration on the 29th night. He recorded the declaration in my presence. Surendra Babu is dead. This was over two years ago. The Sub-Deputy Collector, Surendra Nath Ghosh, came and recorded his dying declaration on the 29th night. He recorded the declaration in my presence. Surendra Babu is dead. This was over two years ago. Ex.2 is the Dying Declaration as recorded by Surendra Babu in my presence. I know Surendra Babu’s handwriting and signature. He read it over to the deceased in my presence. The declarant, Surendra, admitted it to be correct. Ex.2 read over.” It is contended on behalf of the accused that this evidence is insufficient to render the recorded statement Ex.2 evidence in the case. Our attention has been drawn to several decisions on this point, but it is not necessary to refer to them all in detail. The main point on which they turn is that if the statement of a deceased person as to the cause of his death is recorded by a Magistrate, the mere signature of the Magistrate to that statement is not sufficient to make that statement admissible in evidence, but there must be direct proof that such statement was made. Some of these decisions go on to say that in order to prove the statement it is necessary that the Magistrate should be called and that he should refresh his memory by reference to the statement recorded by him. But so far as these decisions direct how the statement is to be proved, the remarks in the judgment are mere obiter dicta. In all the cases cited except one, to which we will refer, the only point that is actually decided was that the recorded statement was not admissible in evidence because no proof had been given that the deceased person made that statement . The only reported case of those that have been cited in which it appears that the person who recorded the statement was examined as a witness is the case of King Emperor v. Daulat Kunjra, 1902 (6) C.W.N. 921. In that case the statement of the deceased was wrongly treated as the first information. It was held that it was not admissible as first information, and then the prosecution wished to make it admissible under Section 32 of the Evidence Act. It was held that it could not be regarded as evidence because the course indicated in the case of Empress v. Samiruddin, 1881 (8) Cal. 211, had not been followed. It was held that it was not admissible as first information, and then the prosecution wished to make it admissible under Section 32 of the Evidence Act. It was held that it could not be regarded as evidence because the course indicated in the case of Empress v. Samiruddin, 1881 (8) Cal. 211, had not been followed. But the report, though it indicates that the police Sub- Inspector who recorded the statement was examined as a witness, does not show what evidence he gave as to this statement. The case of Empress v. Samiruddin, 1881 (8) Cal. 211, has been treated as the leading case and is referred to in all or nearly all the cases cited. What was held then as regards the statement which was sought to be proved was that the writing made by the Magistrate who recorded the statement could not be admitted to prove the statement made by the deceased. This statement must be proved in the ordinary way by a person who heard it made. In our opinion, in the present case the evidence of the Assistant Surgeon fulfils that direction. The statement made by the deceased has been proved by a person who heard it made. An objection has been taken that as the Assistant Surgeon neither himself recorded the statement nor read it at the time when it was made, he could not refresh his memory by reference to that statement under Section 159 of the Evidence Act. But we hold that the evidence, that the deceased used the words contained in the statement given by the witness who can speak to these words by refreshing his memory, is not the only way in which the statement of the person can be proved. If the witness, who heard that statement made, swears that the written statement correctly reproduces the words used by the deceased, this is sufficient to prove that the deceased did use the words contained in that statement. Here the important part of the evidence is that the Dying Declaration was recorded in the presence of a witness, that it was read over to the deceased in the presence of the witness and was admitted by the deceased to be correct. This we think is sufficient. Our view is supported by the case of Gouridas Namasudra v. Emperor, 1908 (36) Cal. 659. This we think is sufficient. Our view is supported by the case of Gouridas Namasudra v. Emperor, 1908 (36) Cal. 659. There the written petition of complaint which contained the statement made by the deceased person as to the cause of his death, was admitted in evidence on being proved by the mukhtear’s mohurrir , who had prepared it under personal instructions, and who deposed that the deceased made the statement to him which was correctly recorded in the petition.” 18. The facts of the above said case in the decision cited supra, are squarelly applicable to the facts of the instant case. In this case also, though the Magistrate who has recorded the Dying Declaration, Ex.P.11, was not examined as he died pending trial, the prosecution has chosen to examine P.W.1, the Doctor, who has stated that the deceased was conscious and in a fit state of mind and the Dying Declaration was recorded by the Magistrate concerned in his presence. Apart from the examination of P.W.1, the prosecution also examined P.W.9, the Court Clerk of the said Magistrate who is acquainted with the signature and handwriting of the deceased-Magistrate and coupled with these depositions, the prosecution also went one step further and as already stated, has marked the deposition of the very same Magistrate under Ex.P.33 given in the split up case in S.C. No.40 of 1998 for the other accused in respect of the very same occurrence. Therefore, we have no hesitation to hold that there is no impediment or legal bar to place reliance on the Dying Declaration, Ex.P.11, said to have been recorded by the deceased Magistrate. 19. The contention of the learned counsel for the appellant that there is no particulars about the accused/appellant in the Dying Declaration, is also unacceptable as already pointed out that the accused/appellant is specifically mentioned in the Dying Declaration by the deceased as “Augustine son Jesu”. Therefore, it is crystal clear that even the father’s name of the appellant/ accused is also mentioned in the Dying Declaration. 20. Therefore, it is crystal clear that even the father’s name of the appellant/ accused is also mentioned in the Dying Declaration. 20. The other contentions of the learned counsel for the appellant that the medical evidence does not disclose that the injuries caused to the deceased was sufficient in the ordinary course of nature to cause death and it is not stated by the Doctor who has examined the deceased that the deceased informed him that he was assaulted by a known person are unacceptable in view of the materials available on record. A perusal of the evidence of the Doctor, P.W.1, clearly shows that the Doctor, P.W.1, has stated in his evidence that the injuries 1 to 3 and 7 are necessarily fatal and the Doctor, P.W.17 who has conducted post-mortem also categorically stated that the cumulative effect of the injuries caused to the deceased are sufficient to cause the death in the ordinary course of nature. A perusal of Accident Register, Ex.P.16, also discloses that it is mentioned that the deceased was assaulted by a known person. There is also absolutely no material available on record to show that the deceased was induced for giving a false declaration by anyone or there was any tutoring from any other person implicating the accused. 21. Therefore, in view of the above evidence available on record, we are of the considered view that this Court can safely place reliance on the Dying Declaration, Ex.P.11 as the same inspires our confidence and the Dying Declaration also corroborated by the evidence of the Doctor, P.W.1, Court Clerk, P.W.9 and the medical evidence through the Doctor, P.W.17 who has conducted post-mortem on the dead body of the deceased. 22. For the foregoing reasons, the Appeal is dismissed and the Judgment of conviction and sentence passed by the learned Additional District and Sessions Judge (Protection of Civil Rights), Thanjavur, in S.C. No.113 of 2002, dated 04.03.2003, is confirmed.