JUDGMENT GIRISH CHANDRA GUPTA, J. 1. THIS appeal is directed against a judgment and order dated 7th May 1987 passed by the learned Additional Sessions Judge, Coochbihar in Sessions Case No.34 of 1979 corresponding to Sessions Trial No.1(6) of 1980 by which the appellants Sailendra Nath Sarkar, Khakuri Sarkar and Jatindra Nath Barman were convicted of an offence under Section 302 read with Section 34 IPC and were sentenced to suffer rigorous imprisonment for life. 2. THE facts and circumstances of this case briefly stated are as follows:- On 28th October 1977 Dr. Bhupendra Nath Dey Tarafdar was assaulted by some miscreants. Pradip Nag, sisters son of the said victim, called at the police station to lodge a written complaint. Sisir @ Chhana, younger brother of the said victim also reached the police station. After lodging the written complaint both Pradip and Sisir went to the local hospital for arranging an ambulance. Pradip boarded the ambulance while Sisir followed him on bicycle. By the time Pradip reached the place of occurrence, where the victim was lying, police had also arrived there. Pradip to his dismay noticed an injured and crying Bibhuti, son of the victim, reached the place of occurrence. Blood was oozing from his ear. Upon interrogation he disclosed Sailen had assaulted him. Pradip became apprehensive as regards the safety of Sisir. He told the police officer that his younger maternal uncle Sisir might also be in danger. In the circumstances the police officer asked one of the Sub- Inspectors and two constables to go in search of the said Sisir. Pradip accompanied them in the jeep of the police. Near the house of Ashwini, Pradip found the said Sailen Sarkar rushing towards the house of Ashwini. Soon thereafter Monoranjan came there and informed that Sisir was lying severely injured in the house of Rajen Sarkar. Pradip and the police personnel rushed to the house of the said Rajen Sarker and found Sisir lying in a pool of blood. Upon enquiry they came to know from the victim that sensing danger to his life he had rushed inside the house of Rajen Sarkar. Jatin dragged him and Sailen and Khakuri assaulted him by daos. The victim was shifted to hospital where he died in the afternoon between 3-4 P.M. Since the appellants remained unrepresented Mr. Jyotirmoy Adhikary was appointed amicus curiae to represent them. Jatin dragged him and Sailen and Khakuri assaulted him by daos. The victim was shifted to hospital where he died in the afternoon between 3-4 P.M. Since the appellants remained unrepresented Mr. Jyotirmoy Adhikary was appointed amicus curiae to represent them. It has already come on the record that the appellant Jatin died on 23rd February 1999. By the order dated 5th February 2003 it was recorded that the appeal preferred by the said Jatin the appellant no.2 abetted. Mr. Adhikary, learned Advocate advanced the following submissions. Relying on the evidence of the PW 8 (Autopsy Surgeon) Mr. Adhikary contended that the victim in all probability was unconscious and therefore the alleged dying declaration deposed to by the witnesses is not believable. He in support of his submission relied on a judgment in the case of Bhagawan Das vs. State of Rajasthan reported in AIR 1957 SC 589 . He also relied on a judgment in the case of Darsan Singh vs. State of Punjab reported in 1983 SCC 554. He also relied on the evidence of the PW 12 in order to show that the deceased did not make any dying declaration. His alternative submission was that the PW 2 Ashwin deposed that during dying declaration the victim disclosed only the name of accused Sailen Sarkar. He tried to find corroboration from the evidence of the PW 17 who deposed that the victim had disclosed the names of Sailen Sarkar and Khakuri Sarkar. He contended that in any event all the accused persons were not involved by the victim and therefore the conviction of all the three appellants cannot be sustained. Both the submissions advanced by Mr. Adhikary relate to the acceptability of the dying declaration. It would therefore be appropriate to notice the evidence on the record with respect to the dying declaration deposed to by the witnesses. Evidence of the PW 1 Pradip Nag in that regard during his examination-in-chief is as follows:- "I told the police officer that such incidents were happening and Chhana Mama who was coming back from CoochBehar might face similar fate. Then police officer along with two constables took me in a Jeep and proceeded by Dhangdhingguri road towards Coochbehar. We reached near the house of Aswini Brahma. I found Sailen Sarkar to run towards the house of Aswini Brahma. 3. I asked the driver to stop the jeep. Then police officer along with two constables took me in a Jeep and proceeded by Dhangdhingguri road towards Coochbehar. We reached near the house of Aswini Brahma. I found Sailen Sarkar to run towards the house of Aswini Brahma. 3. I asked the driver to stop the jeep. Police party and myself got down from the jeep and proceeded towards the house of Aswini Brahma. Aswini Brahma was coming from the opposite direction. The police officer was talking to Aswini Brahma. Just at that moment Manoranjan Mondal came to the place and reported that Sisir Dey Tarafdar was severely assaulted and he was kept in the house of Rajen Sarkar. I rushed to the house of Rajen Sarkar. Monoranjan Mondal and the police party followed me. I reached the place first. I found Sisir Dey Tarafdar lying near the south viti ghar of Rajen Sarkar with injuries in his head, left palm, left knee and on the back side of the right knee. He was profusely bleeding from these injuries. I saw no inmate of the house at or near the place. I do not remember to have seen any of them in the house. I saw a few kanthas left for drying in the sun. I took a few of them and bandaged the wounds. I made enquiry from Sisir Dey Tarafdar. He told me that on his way back from Cooch Behar when he reached near the house of Rajen Sarkar, Sailen Sarkar, Khakuri Sarkar, Jatin Barman and few others attacked him. He then left the cycle and tried to take shelter in the northern viti ghar of Rajen Sarkar. Jatin Barman then pulled him out from that ghar. Sailen Sarkar and Khakuri Sarkar struck him by daos. Sailen, Khakuri and Jatin are present in the court room. (identified the accused persons on dock). Monoranjan Mondal assisted me in bandaging the wounds. Police Party also arrived at the place immediately after us. Aswini Brahma came after the police party. Sisir Dey Tarafdar also gave out the facts and names to Monoranjan Mondal and the police party." 4. Sailen, Khakuri and Jatin are present in the court room. (identified the accused persons on dock). Monoranjan Mondal assisted me in bandaging the wounds. Police Party also arrived at the place immediately after us. Aswini Brahma came after the police party. Sisir Dey Tarafdar also gave out the facts and names to Monoranjan Mondal and the police party." 4. DURING his cross-examination he deposed as follows:- "On being asked by me Chhana babu told me that while he was returning from Cooch Behar Sailen Sarkar, Thakuri Sarkar had been attacked him, he took shelter at the house of Rajen Sarkar and at that time Jatin Barman dragged him out and Thakuri Sarkar and Sailen attacked him with dao. It took about "minutes for Chhana babu to report the fact to me. Chhana babu told me in presence of other. I cannot say the names and the number of the constable. I saw about three police personnel were present. It is a fact that Aswini Brahma was also present there. No other person was present there. It is a fact that when Chhana babu gave reply to me then those persons also heard him. It is a fact that I asked Chhana babu at first before he was asked by any other person. I do not remember who asked Chhana babu among the persons after me. I cannot say after how many minutes my question the next man asked Chhana babu. Gradually he was shrinking. I did not notice what he was stated afterwards in the report. As I was busy with the nursing so I did not notice minutely other words of Chhana babu. I saw on one occasion that police was asking him and on other occasion Aswini Brahma. I found nobody else asking him. I cannot say who asked Chhana babu for the last time. I did not notice when the police jeep came back while they were asking Chhana babu." It would appear that according to the victim the actual assailants were Sailen and Khakuri. This has been corroborated by the Assistant Sub-Inspector of Police (PW 13) who had accompanied the PW 1. He deposed in that regard during his cross-examination as follows:- "At the house where Sisir was lying besides we, the police personnel, Pradip Nag and Aswini Brahma were present there. We met that Aswini Brahma on the road. We all went together. This has been corroborated by the Assistant Sub-Inspector of Police (PW 13) who had accompanied the PW 1. He deposed in that regard during his cross-examination as follows:- "At the house where Sisir was lying besides we, the police personnel, Pradip Nag and Aswini Brahma were present there. We met that Aswini Brahma on the road. We all went together. It is a fact that besides we, the police personnel and said Pradip Nag and Aswini Brahma, no other person came there. We were there where Sisir was lying for a considerable period but even by guess I cannot say how long we were there. We poured water there for about 15/20 minutes. After pouring water Sisir was fleeing bit well and then on the question of Pradip he answered by saying those names as the persons who assaulted him. On being asked by Pradip the said injured Sisir told that he was assaulted by Khakuri and Sailen. In my presence he uttered these two names only once. I did not hear him to say anything more. When he uttered those two names then I, Kanai Samajdar, Aswini Brahma, Pradip Nag were present there." 5. KANAI Samajdar, an accompanying constable is the PW 17. He deposed in that regard during his examination-in-chief is as follows:- "On being asked by me the said injured man told me that Sailen Sarkar and Khakuri Sarkar caused injuries to him." During his cross-examination he deposed as follows:- "We poured water and also gave water to the said injured to drink but I can not say how long we did it. O.C. came there within 10 minutes by the car. On being asked by me the injured told the names of those two person who caused the said injuries to him. His condition was very serious. He was saying "Ma- Ma Bachao Jal- dau". Then I asked him when he told me those two names and said none else than those two persons caused that injury." 6. ASHWINI was examined as PW 2. He turned hostile. He deposed as follows:- "On the 11th Kartick, 1384 B.S. at about 10.00/10.30 a.m. a police jeep came from the west, stopped on the road to the south of my house and sounded horn. I came out of my house. One Jamadar came down from jeep. 2 constables and Pradip Kumar Nag also came down after him. He turned hostile. He deposed as follows:- "On the 11th Kartick, 1384 B.S. at about 10.00/10.30 a.m. a police jeep came from the west, stopped on the road to the south of my house and sounded horn. I came out of my house. One Jamadar came down from jeep. 2 constables and Pradip Kumar Nag also came down after him. They were approaching north. I was proceeding to the south. I met them near the house of Haramohan Sarkar. I was talking to them. In the mean time one Manoranjan came and told us that Chhana Mama was restrained by a large number of people on the road near the trijunction point of Sarishabaridanga, Nageswarguri. The police men along with Pradip and Manoranjan proceeded by the jeep. I ran to the place. The jeep stopped near the house of Rajen Sarkar. Thereafter they had entered the house of Rajen Sarkar. I followed them. There I saw that Chhana @ Sisir Dey Tarafdar was lying severely injured with injuries at his head, knees and in the palm. I brought a cloth from the neighbouring house, cut it into pieces and Pradip bandaged the wounds. In reply to the query of Manoranjan, Sisir told us with much difficulty that he was assaulted by Saila." PW 8 the Autopsy Surgeon has confirmed that more than one assailants might have caused the injury to the deceased. He has talked about a probability that in 99% of the cases the patient is likely to loose consciousness. He has also deposed that blood was likely to be exhausted within 5/6 minutes. 7. ON the basis of the evidence of the PW 8 it is not possible to discard the evidence of the eyewitnesses and to conclude that the victim was not in a position to make the dying declaration. There is no reason why the police officer who had accompanied the PW 1 Pradip looking for the victim Sisir would resort to perjury in order to prop up a false case. Even the hostile witness Ashwini did not dispute the fact that the victim did, in fact, make a dying declaration. The accused Jiten is dead. 8. THE appeal preferred by him has abetted. As regards the complicity of the accused Sailen and Khakuri there can be no manner of doubt. PW 12 the Officer-in-Charge of the police station had not accompanied the PW 1. The accused Jiten is dead. 8. THE appeal preferred by him has abetted. As regards the complicity of the accused Sailen and Khakuri there can be no manner of doubt. PW 12 the Officer-in-Charge of the police station had not accompanied the PW 1. Therefore he was not there when the dying declaration was made. After he reached no further statement was made by the victim. Therefore his evidence neither can support the evidence of the witnesses discussed above nor can the evidence of PW 12 discredit the evidence of those witnesses. Evidence of the PW 8 the Autopsy Surgeon is not decisive. Therefore it is not possible to discard the evidence on the record. The judgment cited by Mr. Adhikary has no manner of application. In the case of Bhagwan Das (supra) the dying declaration deposed to by the witnesses was contradictory to each other. Their Lordships in paragraph 14 of the judgment expressed the view that no tribunal from the evidence on record could have inferred that the accused person was guilty. Therefore that judgment can have no manner of application to the facts and circumstances of this case. 9. SIMILARLY in the case of Darsan Singh (supra) the dying declaration was disbelieved because the Autopsy Surgeon was of the view that the nature of injuries were such that there were remote chances of the victim remaining conscious to make the dying declaration. The incident in that case had taken place in the mid-night and the alleged dying declaration was allegedly made at 7 A.M. in the morning. It is in those facts that the dying declaration was disbelieved. In the present case the dying declaration was instantaneously made. As a matter of fact both the PWs.1 and 2 deposed that they had seen one of the assailants viz. Sailen rushing out of the place of occurrence. This circumstantial evidence corroborates the dying declaration. The evidence of the PW 1 has been supported even by the hostile witness the PW 2. 10. THEREFORE it is not possible for us to upset the judgment of the learned Trial Court who obviously has taken a realistic view of the matter. For the reasons aforesaid the appeal of the appellants Sailendra Nath Sarkar and Khakuri Sarkar is dismissed and the appeal of Jatindra Nath Barman has already abetted. 10. THEREFORE it is not possible for us to upset the judgment of the learned Trial Court who obviously has taken a realistic view of the matter. For the reasons aforesaid the appeal of the appellants Sailendra Nath Sarkar and Khakuri Sarkar is dismissed and the appeal of Jatindra Nath Barman has already abetted. The appellant Sailendra Nath Sarkar and Khakuri Sarkar are directed to surrender forthwith and to serve out the sentence. The learned trial Court is directed to take them in custody and to issue appropriate jail warrant. 11. LOWER Court Records with a copy of this judgment be sent down forthwith. Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of usual formalities.