JUDGMENT P.G. Agarwal, J. 1. Heard the learned Counsel for both sides. 2. This appeal is directed against the judgment and Order dated 21.04.2004 passed by the Sessions Judge, Barpeta in Sessions Case No. 9/1999 (GR Case No. 877/93). 3. In Sessions Case No. 9/1999 six accused persons were tried by the Sessions Judge, Barpeta for commission of the offence Under Section 120B/341/324/302 read with Section 34 IPC. During trial, prosecution examined 24 witnesses and there were as many as 16 paper exhibits. On conclusion, the learned Sessions Judge acquitted accused Samshul Haque and accused Ali Hussain. The remaining four accused persons were convicted Under Section 120B/341/324/302/34 IPC. Out of the four convicts, accused Biplab Sarkar died during the pendency of this appeal and the appeal against this accused stands abated. 4. Narayan Saha, Block Congress President, used to reside at Barpeta along with his wife Anubha Saha (P.W. 1), son Bidyut Saha (P.W. 2), another son Abhijit Saha and daughter Ruma and the accused persons are also all members of the Congress party and accused Samsul Haque was a Minister of the State Government. On 29.05.93 around 11 P.M., accused Appellants Anjan and Biplab (since deceased) case to the house of Narayan Saha and informed the family members that their daughter Suparna Saha is detained at Barpeta Road GRPS and that a Minister is awaiting for him at the relevant time and so he should proceed there. It may be mentioned that Suparna, daughter of Narayan Saha and Anubha Saha, had eloped few days prior to the incident and the family members were all searching for her. On receipt of the above information, Narayan Saha alongwith his son Bidyut Saha went out in a scooter which was driven by Narayan Sarkar and P.W. 2 was a pillion rider and when they reached near the gate of the Dak Bungalow, a person signaled them by flushing torch light whereupon his father stopped the scooter and the person asked 'Are you Narayan Saha" ? And when his father introduced himself as Narayan Saha, the said person and accused Abdul Haque @ Burani assaulted Bidyut Saha and his father for making comments against the Minister Samsul Haque. P.W. 2 tried to help his father whereupon the accused assaulted him on the head with a torch light. Thereafter accused Burani brought out a dagger and stabbed Narayan Saha on the abdomen. P.W. 2 tried to help his father whereupon the accused assaulted him on the head with a torch light. Thereafter accused Burani brought out a dagger and stabbed Narayan Saha on the abdomen. P.W. 2 ran to the Railway Station and raised alarm. After some time, when P.W. 2 returned back to the spot, he did not find his father, but he took his scooter and went to the Police Station and reported the matter to them. In the meantime, his mother came to the Police station. P.W. 2 also reported the matter to his uncle Bijoy Kr. Saha (P.W. 3). P.W. 2 was sent to Barpeta Road Hospital for treatment where he found his father also undergoing treatment. In the meantime accused Samshul came to the hospital to enquire about them and there was some altercation between P.W. 2 and accused Samshul. Narayan Saha was removed to Barpeta Civil Hospital but he succumbed to the injuries on the way to Hospital. 5. Dr. M.N. Das (P.W. 5) held the autopsy over the dead body of Narayan Saha and found as follows- Wounds - (1) Cut injury on the right parietal bone of the skull antro posteriorly longitudinal cutting the bone of the skull. Size 2" x 1/3" x 1/3" length-breath-depth. (2) Cut injury on the mid-line of the head from the anterior hair margin, antro-posteriorly cutting the skull bone, size 2"x.1/2" x 1/3" length-breath-depth. (3) Oblique cut injury over forehead in the midline. Size 1 1/4" x 1/3" x 1/3" length-breath-depth. (4) Antro-posteriorly long cut mark in middle of the forehead slicing the bone which form a curve injury joining to the another cut injury transversely just below the injury slicing the skull bone. Size. (a) 1 1/2" x 1/3" x 1/3" (b) 2 1/4" x 1/2" x 1/3". (5) Two transverse cut injuries on the posterior part of the upper part of the neck, in a obliquely slicing minor. Size- (a) 2 1/2" x 1/2" x 1/2" (b) 2" x 1/4" x 1/2" (6) Penetrating injury over the epigastrium longitudinally in the midline from which omentus was coming out following separation of the bandage over it. Size of the wound was pointed on both sides. Size was- 1 1/2" x 1/2" x 5" length-breath-depth. (7) Penetrating injury near the other one of Injury No. (6). Size- 1" x 1/4" x 1/2". Size of the wound was pointed on both sides. Size was- 1 1/2" x 1/2" x 5" length-breath-depth. (7) Penetrating injury near the other one of Injury No. (6). Size- 1" x 1/4" x 1/2". (8) Transverse cut injury just below nostrils cutting the upper jaw. Size- 2 1/2" x 1/2" x 1". (9) Small cut injury over the left part of the lower lip. Size- 1/2" x 1/2" x 1/2" length-breath-depth. (10) Three cut injuries over the dorsum of the left forearm of almost same size of 1" x 1/3" x 1/2". (11) One oblique cut injury on the dorsum of the left fore arm just over the wrist cutting lower end of the ulana. Size- 2 1/2" X 1" x 1 1/2". (12) Cut injuries over the left index finger at the mid phalanx and the thumb at metacarpophalangeal joint. (13) Penetrating injury in the lower part of the left side of the abdomen just near the antro supiliac spine. Size- 1 1/2" x 1/3" x 1". 6. The doctor further found that all the injuries are ante mortem injuries and in his opinion the death was due to shock and hemorrhage as a result the injuries sustained. 7. The death of the deceased Narayan Saha as a result of the above injury has been fully established by the oral and medical evidence on record and the same has not been disputed or challenged. We concur with the finding of the trial Court that this is a case of homicidal death. 8. Bidyut Saha (P.W. 2), son of the deceased, is the sole eye witness to the occurrence. He was present at the time of occurrence as he accompanied his father. The witness has fully supported the prosecution case as stated above. 9. Dr. Girish Das (P.W. 7) was the SDMO at Barpeta Road PHC and he found a person lying in a pool of blood in the verandah of the hospital and thereafter he found Bidyut lying in injured condition and the time was around midnight and P.W. 7 gave the first aid. The doctor found as many as 4 injuries on the persons of P.W. 2 and this witness also deposed that there was an altercation between P.W. 2 and the Minister Samsul Haque in the hospital and later on Narayan Saha was sent Barpeta Civil Hospital for better treatment. The doctor found as many as 4 injuries on the persons of P.W. 2 and this witness also deposed that there was an altercation between P.W. 2 and the Minister Samsul Haque in the hospital and later on Narayan Saha was sent Barpeta Civil Hospital for better treatment. Thus the statement of P.W. 2 that he had sustained injury in the above incident has been fully supported by the medical evidence on record. 10. Anubha Saha (P.W. 1) is the wife of the deceased and the mother of P.W. 2 and she has deposed that on the day of occurrence her husband, eldest son Bidyut and the other son Abhijit and daughter Ruma were at their house. On the day of occurrence around 11 PM accused Biplab Sarkar knocked the door of their house and called her husband to the Dak Bungalow for arranging the release of her daughter. 11. Bijay Kr. Saha (P.W. 3) is the own brother of the deceased and he was informed about the incident by P.W. 2 and he also noticed assault on the deceased. P.W. 3, however, did not witness the incident. 12. Upendra Nath Kalita (P.W. 6) was the police constable and he was cross examined by the prosecution as this witness has resiled from his earlier version. 13. Azad Hussain (P.W. 8) was the Chowkidar P.W.D Dak Bungalow and while on duly he saw a man going on a scooter crying for help. However, P.W. 8 did not venture to go out and on the next day morning, he heard about the death of Narayan Saha. 14. Abdul Hussain (P.W. 9) is an employee of the hospital, who had seen the injuries on the person of Narayan Saha. 15. The prosecution case as disclosed during trial is that after entering into a criminal conspiracy by the accused persons, Narayan Saha was called out from his house at around 11 PM on a false pretext, and when he reached near the Dak Bungalow gate, the accused persons assaulted him causing his death. So far accused Anjan Paul is concerned, the evidence against him is that he had called the deceased to the place of occurrence. P.W. 2 has also deposed that when he tried to help his father, he was also assaulted by the accused persons but he was not sure about the identification of the persons who had assaulted him. So far accused Anjan Paul is concerned, the evidence against him is that he had called the deceased to the place of occurrence. P.W. 2 has also deposed that when he tried to help his father, he was also assaulted by the accused persons but he was not sure about the identification of the persons who had assaulted him. Likewise, there is evidence on record that after Narayan Saha fell down, he was brutally assaulted by accused Abdul Haque @ Burani and other accused persons. The number of injuries sustained by the deceased as well as P.W. 2 shows that assault was committed by more than one person. 16. A statement was, therefore, made that merely because the deceased was called by accused Anjan Paul and Afsar Ali-can they be roped in this case for the offence of criminal conspiracy and commission of murder. 17. So far the fact of calling of Narayan Saha by the two accused persons, namely, Anjan Paul and Afser Ali along with the accused Biplab Sarkar (since deceased) is concerned, there is evidence of P.W. 1 and P.W. 2. They have deposed to that effect and this has been supported and corroborated by the dying declaration of the deceased Narayan Saha. 18. P.W. 4 is Dr. Guru Charan Das. Superintendent of Barpeta Civil Hospital and he was asked by police to record the dying declaration of Narayan Saha. P.W. 4 has deposed that at that time the patient was in semi conscious state and he could understand and responsive to the questions and thereafter the dying declaration (Ext. 2) was recorded by him in presence of three witnesses. However, by the time the dying declaration was completed, the accused became fully unconscious and he was taken to an ambulance for taking him to GMC Hospital but on the way Narayan Saha succumbed to the injuries. Ext. 2(1) is the relevant statement which reads as follows: My name is Narayan Saha, S/o Late Basanta Kr. Saha. A resident of Barpeta Road. I am the President of Block Congress (1) At about 12 midnight. Anjan Paul and Biplab Kr. Saha called me near to Barpeta Road Congress Office. They had told me that my daughter who had been traced out as being kept at G.R.P. thana. Afar too was with them. My son too was with me at that time. I had come on a scooter. Anjan Paul and Biplab Kr. Saha called me near to Barpeta Road Congress Office. They had told me that my daughter who had been traced out as being kept at G.R.P. thana. Afar too was with them. My son too was with me at that time. I had come on a scooter. They questioned me if my name was Narayan Saha. When I replied in the affirmation, an accomplice dacoit of Afsar stabbed me in the neck with a dagger all on a sudden. I sat down and prayed for mercy. But all the accused persons stabbed me. When I fell down, they beat my son too. When I was lying they thought me to be dead and went to P.W.D. I.B. Somehow I managed to reach the Barpeta Road Civil Hospital. There I did not get any doctor I was screaming in pain there. Some time later, my younger brother Bijoy and Ganesh brought me to Barpeta. I was stabbed by professional murder. I know the man who stabbed me but I do not know his name. 19. Thus, we find that the deceased has categorically named that two accused Appellants and the deceased Biplab Sarkar as the persons who called him from his house. So far identification of the assailants is concerned, we will revert it to a later stage. 20. The admissibility of the above dying declaration has been challenged by the defence on the ground that there is no certificate from Doctor and that it is not corroborated by P.W. 2. So far the requirement of the doctor's certificate is concerned, the matter was settled by the Constitution Bench of the Apex Court in the case of Laxman v. State of Maharashtra reported in (2002) 6 SCC 710 and it was further explained in the case of Muthu Kutty v. State of Tamil Nadu reported in (2005) 9 SCC 113 wherein the Apex Court held as follows: It was observed by a Constitution Bench of this Court in Laxman v. State of Maharashtra that where the medical certificate indicated that the patient was conscious, it would not be correct to say that there was no certification as to the state of mind of the declarant. Moreover, state of mind was proved by testimony of the doctor who was present when the dying declaration was recorded. Moreover, state of mind was proved by testimony of the doctor who was present when the dying declaration was recorded. In the aforesaid background it cannot be said that there was any infirmity. Further, if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that the doctor has not certified as to the condition of the declarant to make he dying declaration. (See Rambai v. State of Chhattasgarh). In the instant case contrary to what the accused-Appellants plead, the doctor's certificate is there. 21. P.W. 4 was cross examined at length and from the evidence, we find that Narayan Saha was in proper physical and mental state to make the statement and the doctor has recorded it correctly. P.W. 4 is an independent person and there is no requirement of law that respectable persons of nearby place, i.e., hospital re required to be called in. Although we find that in the present case, there were three independent witnesses present, we, therefore, hold that Ext. 2 is properly recorded dying declaration and it can be acted upon. 22. So far the corroboration is concerned, we find that although P.W. 1 and P.W. 2 have corroborated the statement of the deceased (Ext.2) as regards arrival of accused Anjan Paul and Biplab Sarkar to call the deceased at 11 PM. He, however, not stated anything about Afser Ali but that does not make the presence of Afsar Ali doubtful. 23. As regards the question whether the act of the accused Appellants, Anjan and Afser to come to the house of the deceased at 11 PM and calling him to the place of occurrence on a false pretext, is enough to incriminate them in this incident of murder, as stated above, this is a case of criminal conspiracy whereby the deceased Narayan Saha was called out from his house at midnight on a false pretext and when he arrived at the place of occurrence, a professional/hired killer was awaiting with the weapon of assault and after satisfying about identification of the victim, this man along with others killed Narayan Saha. 24. In this connection we may like to recapitulate the observations of the Apex Court as regards offence of criminal conspiracy Under Section 120A IPC. 24. In this connection we may like to recapitulate the observations of the Apex Court as regards offence of criminal conspiracy Under Section 120A IPC. In the case of Yash Pal Mital v. State of Punjab reported in AIR 1977 SC 2433 , it was observed as follows- The offence of criminal conspiracy under Section 120-A of the I.P. Code is distinct offence. It is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they coparticipators in the main object of the conspiracy. There may be so many devices and techniques adopted to achieve the common goal of the conspiracy and there may be division of performances in the chain of actions with one object to achieve the real end of which every collaborator must bed aware and in which each of them must be interested. There must be unity of object or purpose but there may be plurality of means sometimes even unknown to one another, amongst the conspirators. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be and purported to be in furtherance of the objects of the conspiracy even though there may be sometimes miss-fire or over-shooting by some of the conspirators. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others it will not affect the culpability of those others when they are associated with the object of the conspiracy. 25. In the case of Shivanarayan Laximinarayan Joshi v. State of Maharashtra AIR 1980 SC 439 , the Apex Court held- (i) It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can only be proved largely from the inferences drawn from the acts or illegal omissions committed by the conspirators in pursuance of a common design, (ii) Once a conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of others. 26. In the present case, we find that one of the daughters of the deceased namely Suparna had eloped with a boy, few days prior to the incident and the deceased and all his family members were fervently looking for her. 26. In the present case, we find that one of the daughters of the deceased namely Suparna had eloped with a boy, few days prior to the incident and the deceased and all his family members were fervently looking for her. The deceased was the President of the Block Congress and the accused persons were all Congress workers closed to a sitting Minister and a co-accused in this case, namely, Samshul Haque. The deceased is alleged to have made some wild remarks against the sitting Minister and this was not taken lightly and a conspiracy was hatched to eliminate the deceased from the scene. Taking advantage of the deplorable mental state of the deceased, the accused Appellants Anjan, Afser and Biplab went to his residence around 11 PM and called the deceased by falsely informing that his daughter has been recovered. The deceased fell prey to this well planned action and when he along with his son reached near the spot, he was assaulted and killed. The alleged recovery of Suparna by the GRP was a blatant lie and as such there is no hesitation to hold that the two accused Appellants were privy to the conspiracy and they had participated in the same and did illegal acts in pursuance of the said conspiracy to eliminate Narayan Saha from the Political scene. 27. Now coming to the case of accused Abdul Haque @ Burani, the deceased Narayan Saha in his dying declaration (Ext. 2) has stated about the professional killer, when he knew by face but does not know his name. While Narayan Saha was alive, there was no TIP. However, we find that there is another eye witness (P.W. 2) who recognized the assailant. He has deposed that when they reached near the gate of the Dak Bungalow, a man with a torch light signaled them to stop by flushing the torch light and his father, the deceased Narayan Saha, stopped the scooter. The said person asked his father - "Are you Narayan Saha ?" P.W. 2 claimed to have noticed the physique of this man and subsequently in a test identification parade, he identified him to be Abdul Haque @ Burani. The witness also identified the accused Abdul Haque @ Burani in the Court during trial Ext. 11 is the TIP Report. The said person asked his father - "Are you Narayan Saha ?" P.W. 2 claimed to have noticed the physique of this man and subsequently in a test identification parade, he identified him to be Abdul Haque @ Burani. The witness also identified the accused Abdul Haque @ Burani in the Court during trial Ext. 11 is the TIP Report. As regards the TIP held at the District Jail, Barpeta on 26.08.1993, it was conducted by Judicial Magistrate S.M. Irfan and it shows that the witness Bidyut Saha identified Burhan Ali @ Abdul Haque and Ali Hussain. 28. Learned Counsel for the Appellants submitted that the report has been exhibited and brought on record by the I/O, but the Magistrate who conducted the TIP has not spoken anything about holding of the TIP. The Magistrate has been examined as P.W. 13 during trial and the witness stated about recording of certain statements Under Section 164 Code of Criminal Procedure. We find that Ext. 11 was admitted into evidence without objection. Learned P.P., however, committed a guffaw in not questioning P.W. 13 about Ext. 11. The question is in the absence of the evidence of the Magistrate as regards the holding of TIP, whether Ext. 11 can be considered and acted upon. 29. The Investigating Police Officer (P.W. 18) has deposed about conducting of the TIP in the District Jail, Barpeta, wherein the witness Bidyut Saha identified accused Burhan Ali @ Abdul Haque by touching his body. The TIP was conducted by the Magistrate on the prayer made by P.W. 18 before the Chief Judicial Magistrate. 30. We, thus, find that P.W. 13 was discharging his duty as a Judicial Magistrate and held the TIP and thereafter he had submitted the Report (Ext. 11) as required under the TIP Act. The responsibilities of the Magistrate in holding the TIP are more or less akin to the responsibility of the Magistrate in recording confession Under Section 164 Code of Criminal Procedure. 31. The law has been settled by the Apex Court in a catena of decisions that examination of the Magistrate is not a must to prove the confessional statement. The responsibilities of the Magistrate in holding the TIP are more or less akin to the responsibility of the Magistrate in recording confession Under Section 164 Code of Criminal Procedure. 31. The law has been settled by the Apex Court in a catena of decisions that examination of the Magistrate is not a must to prove the confessional statement. Considering the fact that in the matter of recording the confessional statement, the recording Magistrate discharges a solemn and responsible duty and as such, when the confessional statement can be brought on record without examining the Magistrate, we hardly find any force in the objection raised by the learned Counsel for the Appellants that in the matter of TIP, the examination of the Magistrate is a must. P.W. 18 has proved the Report (Ext. 11) along with the signature of the Magistrate which was known to him by way of working under him. We, therefore, hold that non examination of P.W. 13 as regards Ext. 11 is not fatal to the prosecution. 32. So far the mode of identification is concerned, in the case of Ramkishan Mithanlal Sharma v. State of Bombay reported in AIR 1955 SC 104 , the Apex Court held as follows- In order to resolve this conflict of opinion, one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police officers interrogate the identifying witnesses or the Panch witnesses who are procured by the police do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject matter of the offence or the persons who are concerned in the offence. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. 33. P.W. 2 has also deposed about the TIP and has stated that he had identified the accused Abdul Haque @ Burani at the TIP held at the Jail and the witness has identified the accused again during trial. We find that P.W. 2 has not been cross examined as regards the TIP or identification and recognition of Abdul Haque @ Burani. 34. In view of the evidence of P.W. 18 along with the evidence of P.W. 2, we hold that the learned trial Court rightly relied on the TIP Report (Ext. 11) and the participation of the accused-Appellant Abdul Haque in the killing of the deceased Narayan Saha and assault on P.W. 2 has been fully established. 35. In the result, we find that the prosecution has been able to establish the charge of criminal conspiracy and killing of Narayan Saha and assault on P.W. 2 Bidyut Saha beyond reasonable doubt. The conviction and sentence of the accused-Appellants is in accordance with law. The appeal is devoid of any merit and it is accordingly dismissed. Send down the records. Appeal dismissed