1A. Ansari, J Accused Birju Chowtal faced trial for having allegedly committed offences punishable under sections 449,436 and 302, IPC and, following his trial, he stands convicted, under section 302, IPC, by judgment and order, dated 7.5.2008, passed, in Sessions Case No. 54(M) of 2006, by the learned Additional Sessions Judge, FTC, No.l, Margherita, and sentenced to suffer imprisonment for life and pay fine of Rs.5,000 and, in default of payment of fine, suffer rigorous imprisonment for a period of two months. 2. The case of the prosecution may, in brief, be described as under : (i) On 17.1.1995, one Sitaram Majhi (since deceased) lodged an Ejahar, at Margherita Police Station, alleging, inter alia, that on 16.01.1995, at about 6.30 p.m., accused Birju Chowtal knocked the door of the informant's dwelling house and, as soon as the informant's mother opened the door, the accused, by means of a dao, inflicted injuries on informant's mother, Naha Majhi, causing grievous injuries on her person and, on witnessing the occurrence, when the informant, in order to save his mother, moved forward, accused, Birju Chowtal, assaulted the informant, too, by means of the said dao on the nape of his neck causing injury on the informant's person and, thereafter, the accused, Birju Chowtal, set fire to the granary of the informant turning the said granary into the ashes and that at the time of the said occurrence, accused Birju was accompanied by Jiban Chowtal (since absconder). (ii) Based on the Ejahar and treating the same as First Information Report ('FIR'), Margherita Police Station Case No. 12/1995, under sections 448/438/326, IPC, was registered against accused Birju Chowtal and Jiban Chowtal. (iii) The injured was moved to Civil Hospital, Margherita, on the very night of the occurrence; but, as a result of excessive bleeding from the cut injury suffered by her on the both sides of her face from the hairrine to the neck, Naha Majhi died and, on her death, on 17.1.1995, section 302, IPC was added to the case aforementioned. 3. During investigation, police held inquest over the said dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid against both the accused, namely, Birju Chowtal and Jiban Chowtal, showing them as absconders seeking their prosecution under sections 448, 436, 323 and 302 read with section 34, IPC. 4. 3. During investigation, police held inquest over the said dead body, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid against both the accused, namely, Birju Chowtal and Jiban Chowtal, showing them as absconders seeking their prosecution under sections 448, 436, 323 and 302 read with section 34, IPC. 4. Before, however, the trial could commence, the informant, Sitaram Majhi, died and, on being apprehended by police, accused Birju Chowtal was put to trial. 5. At the trial, when charges, under sections 449, 436 and 302, IPC, were framed against the accused, he pleaded not guilty thereto. 6. In support of their case, prosecution examined altogether seven witnesses. The accused, Birju Chowtal, was, then, examined under section 313, Cr.PC and, in his examination aforementioned, the accused, Birju Chowtal, denied that he had committed the offence, which was alleged to have been committed by him, his case being that of denial. No evidence was adduced by the defence. 7. Having, however, found the accused, Birju Chowtal, guilty of the offence under section 302, IPC, the learned trial court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused, as a convicted person, has preferred this appeal. So far as the charges, under sections 449 and 436 of the IPC are concerned, the learned trial court made no comments and has not observed anything to show as to whether accused-appellant has been found guilty of the offences under sections 449 and 436 of the IPC or not. Considering, however, the fact that the accused-appellant, Birju Chowtal, has not •been convicted of the offences, under sections 449 and 436 IPC, the implication is that he has been held not guilty of the offences aforementioned and has accordingly been acquitted. As against such an acquittal, no appeal has been preferred by the State. 8. We have heard Mr. R.C. Paul, learned counsel, for the appellant. We have also heard Mrs. A. Devi, learned counsel, who has appeared as amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 9. While considering the present appeal, we may point out that PW3, Dr. 8. We have heard Mr. R.C. Paul, learned counsel, for the appellant. We have also heard Mrs. A. Devi, learned counsel, who has appeared as amicus curiae, and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 9. While considering the present appeal, we may point out that PW3, Dr. Bani Saikia, who had been serving, at the relevant point of time, at Civil Hospital, Margherita, has deposed that the said hospital received, on 16.1.1995, at 9.10 p.m., Naha Majhi, in injured condition, for examination and treatment and also for recording her dying declaration, but her dying declaration could not be recorded as her condition was serious and the injured was, therefore, referred to the Coal India Ltd. Hospital, Margherita, for better treatment. 10. The evidence of the doctor (PW3) has gone undisputed by the defence. Thus, the undisputed evidence of PW3 clearly proves that Naha Majhi was brought to the Civil Hospital, Margherita, on the very day of the occurrence, i.e., on 16.1.1995, at 9,10 p.m., in a seriously injured condition and though police had requested that dying declaration of the injured be recorded, her dying declaration could .not bp recorded due to her serious condition. 11. Bearing in mind what is indicated above, when we come to, the evidence of Dr. R. Chaliha (PW1), we find that according to him, on 18.1.1995, Dr. N.N. Gogoi, Associate Professor, Forensic Medicine, Assam Medical College and Hospital, Dibrugarh, with whose handwriting and signature-he (PWI) PWI was familiar, had conducted post mortem examination on the dead body of Naha Majhi and his findings were as follows : "Injuries: (1) Incised wound in the middle part of the forehead measuring 8x1 cm and cutting the bone, (2) An incised wound in the right parietal scalp measuring 6x1 cm, bone was cut, (3) Incised wound in the left forehead measuring 4x1 cm, scalp deep, (4) Incised wound over the left cheek measuring 6x1 cm, muscle deep, The thoracic organs were healthy. The abdominal organs were healthy. Stomach was healthy and empty. In the cranium and spinal canal, injuries to the scalp and skull are already described. Vertebrae is healthy, Membrane are congested. Subdural hemorrhage is present over the surface of the brain. Brain is congested and edematous." 12. The abdominal organs were healthy. Stomach was healthy and empty. In the cranium and spinal canal, injuries to the scalp and skull are already described. Vertebrae is healthy, Membrane are congested. Subdural hemorrhage is present over the surface of the brain. Brain is congested and edematous." 12. In the opinion of the doctor (PWI), death, in the present case, was due to coma, which was resulted from the ante mortem injuries, which had been caused by sharp cutting weapon, the injuries being homicidal in nature. 13. In his cross-examination, PWI has clarified that the combined effect of all the injuries, which the deceased, Naha Majhi, had sustained, resulted into her death. 14. The above findings, as regard the injuries found on the dead body of Naha Majhi, the cause of death and the nature of weapon used went completely undisputed by the defence inasmuch as the defence declined to cross-examine PWI. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by PWI. We, therefore, hold that Naha Majhi sustained injuries as described by PWI and due to coma, which resulted from the injuries so sustained, that Naha Majhi died and that her death was, thus, homicidal. 15. Bearing in mind the medical evidence on record, which we have discussed above, when we turn to the evidence of PW2 (Barka Majhi), we notice that according to this witness, who is son of deceased Naha Majhi, accused went to assault his brother, Dhan Majhi, but when he did not find Dhan, he hacked his (PW2's) mother, at about 5 p.m., on the day of the occurrence and that he (PW2) learnt about the occurrence from his elder brother, Sitaram Majhi, who had taken the injured, Naha Majhi, to Civil Hospital, Margherita. 16. Considering the fact that Sitaram Majhi died and could not be examined as a witness, the evidence given by PW2 as to what had been reported to him (PW2) by Sitaram Majhi, would be nothing but hearsay and inadmissible in evidence. We, therefore, keep the evidence, so given by PW2, wholly excluded from the purview of our consideration. 17. 16. Considering the fact that Sitaram Majhi died and could not be examined as a witness, the evidence given by PW2 as to what had been reported to him (PW2) by Sitaram Majhi, would be nothing but hearsay and inadmissible in evidence. We, therefore, keep the evidence, so given by PW2, wholly excluded from the purview of our consideration. 17. What is, however, of utmost importance to note, while considering the evidence of PW2, is that he has deposed that he was told by his mother, (i.e., injured Naha Majhi), that Birju Chowtal had cut her and his (PW2's) elder brother, Sitaram, had witnessed the incident. It is further in the evidence of PW2 that Sitaram Majhi had sustained injury on the nape of his neck and Sitaram Majhi died after six months of the occurrence. 18. It may also be pointed out that PW2 has deposed that they took their injured mother to Margherita thana and that on the same day, their mother died and Sitaram Majhi (since deceased) lodged an Ejahar with the police. 19. Though PW2 was put to cross-examination by the defence, there was virtually no cross-examination on the evidence given by PW2 as regards the fact that his mother had told him that Birju Chowtal had cut her. The evidence of PW2 remains, admittedly, unshaken as regards his evidence given to the effect that his mother had told him that Birju Chowtal had cut her. 20. From the above unchallenged and undisturbed evidence of PW2, it clearly transpires that the injured, before her death, had told her son (PW2) that it was accused Birju Chowtal, who had hacked her. 21. Lending support to the above evidence of PW2, the Investigating Officer (PW7) has deposed that on 16.1.1995, Sitaram Majhi came to Margherita thana with his injured mother carrying her in a thela (handcart) and stated that Birju Chowtal, of the same locality, had assaulted his mother by a dao and, accordingly, G.D. Entry No.366, dated 16.1.1995, was recorded and the injured was, immediately, sent to Civil Hospital, Margherita, for medical examination and treatment and, from the said hospital, the injured was shifted to Coal India Ltd. Hospital, Margherita. 22. 22. It is in the evidence of PW7 that the injured was found unconscious and the doctor was requested to record her dying declaration if the injured regained her senses and, then, he (PW7) visited the place of occurrence. It is the further evidence of PW7 that on the next day, at about 8 a.m., when an Ejahar was formally lodged at the said Police Station by Sitaram Majhi (since deceased), a case was registered and investigation was conducted. 23. It is of utmost importance to note, in the evidence of PW7, that at the place of occurrence, the granary of the informant was found gutted and though a search was conducted for accused Birju Chowtal and Jiban Chowtal, Birju Chowtal remained untraceable. 24. From the cross-examination of PW7, nothing significant was elicited to show that the evidence of PW2, that his mother had made an oral dying declaration before she succumbed to death naming the accused-appellant, Birju Chowtal, as her assailant, was untrue, incorrect or false. 25. So far as PW4 is concerned, he held inquest on the dead body of Naha Majhi. Similarly, so far as PW5 is concerned, he was reported about the occurrence by Sitaram Majhi. 26. What is, however, important to note, in the evidence of PW5, is that on being informed about the occurrence of assault on his mother by Sitaram Majhi, PW5 went to the house of Naha Majhi and he found the house of Naha Majhi burnt to ashes. PW5 has further deposed that Naha Majhi was, in the meanwhile, taken to hospital and she died on the very same day. 27. The evidence of PW5 could not be shaken by the defence. Hence, though the evidence of PW5 as to what had been reported to him (PW5) by Sitaram Majhi remains hearsay and inadmissible in evidence, his evidence clearly shows that the house of the deceased was found, on the night of the occurrence, burnt to ashes. 28. 27. The evidence of PW5 could not be shaken by the defence. Hence, though the evidence of PW5 as to what had been reported to him (PW5) by Sitaram Majhi remains hearsay and inadmissible in evidence, his evidence clearly shows that the house of the deceased was found, on the night of the occurrence, burnt to ashes. 28. What emerges from the above discussion is that according to the unshaken evidence of PW2, an oral dying declaration was made by his mother to the effect that it was the accused-appellant, Birju Chowtal, who had hacked her by means of a dao, and, as we have already noticed and pointed out above, the assertion of PW2 that his mother had made the said oral dying declaration was not even challenged by the prosecution. 29. It is well settled that an oral dying declaration is admissible in evidence and if a dying declaration is found truthful and reliable, the same can be made basis for conviction. 30. In the case at hand, the dying declaration, which the prosecution places reliance on, was an oral dying declaration and there is nothing in the evidence on record to show that when the dying declaration was made to PW2 by the injured, she (Naha Majhi) was incapable of speaking. No such suggestion has ever been offered to PW2 by the defence. 31. While considering the question of dying declaration, one may refer to Kundula Bala Subramanyam v. State of Andhra Pradesh, (1993) 2 SCC 684 , wherein the Supreme Court has observed as under : "Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not credit-worthy. Under section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration." 32. In Uka Ram v. State of Rajasthan, (2001) 5 SCC 254 , the Supreme Court, while dealing with the principle on which dying declarations are admitted in evidence, has held as under : "The principle on which the dying declarations are admitted in evidence is based upon the legal maxim nemo moriturus praesumitur mentire, i.e., a man will not meet his Maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that the dying declaration should be or such nature as to inspire full confidence of the court in its correctness. The court is obliged, to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying-declaration, the court should be satisfied that the deceased was in a fit state, of mind to make the statement. The court is obliged, to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying-declaration, the court should be satisfied that the deceased was in a fit state, of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence." 33. Because of what have been discussed and pointed out above, there is no reason to doubt the veracity of the evidence of PW2 and, if his evidence is believed, and we see every reason to believe, his evidence proves, beyond any pale of doubt, that it was the accused-appellant, Birju Chowtal, who had assaulted Naha Majhi by means of a dao and caused her death. The weapon, which the accused used, was as lethal as dao, the part of the body, selected by the accused for causing assault was as vital as head and, coupled with this, the force with which the blows were dealt with are not merely indicative of the fact, but are prove of the fact that the accused-appellant intended nothing less than the death of Naha Majhi, a helpless woman. 34. In the face of the evidence on record and the circumstances, as indicated above, we fully agree with the conclusion, reached by the learned trial court, that the evidence on record prove, beyond reasonable -Tektubt, that Naha Majhi had been put to death intentionally by the accused-appellant, Birju Chowtal, and thereby the accused-appellant committed the offence of murder punishable under section 302, IPC. 35. In the result and for the reasons discussed above, we do not find any reason calling for interference with the finding of guilt reached by the learned trial court and/or the sentence passed against the accused-appellant. This appeal, therefore, fails and the same shall accordingly stand dismissed. 36. Let the amicus curiae be paid a sum of Rs. 5,000 for her valuable assistance rendered to the court. 37. Send back the LCR. __________________