JUDGMENT : C.R. Sarma, J. 1. Heard Mr. AI Uddin, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. This appeal is directed against the judgment and order, dated 27.06.2012, passed by the learned Addl. Sessions Judge (FTC) No. 2, Tinsukia, in Sessions Case No. 12(M)/2010 (G.R. Case No. 290/2009), under Section 302 IPC, whereby the learned Addl. Sessions Judge convicted the appellant under Section 302 IPC and sentences him to suffer imprisonment for life and pay fine of Rs. 5,000/- in default to undergo rigorous imprisonment for another period of 6 (six) months. 2. Aggrieved by the said judgment and order, the convicted person, as appellant, has come up with this appeal. 3. The prosecution case, in brief, as may be necessary, for disposal of this appeal are as follows: On 27.06.2007 at late night, the appellant namely Md. Abdul Rahman assaulted Md. Ataur Rahman Laskar, (hereinafter called the deceased), causing grievous injury to his person, as a result of which he succumbed to the injuries, on 28.6.2009. Immediately after the incident, police was informed and accordingly police made G.D. Enter No. 411 dated 27.06.2009, visited the place of occurrence i.e. the courtyard of P.W. No. 2 wherein the deceased was found lying in injured condition. Thereafter the deceased was shifted to hospital for his treatment. 4. During the course of the investigation, police conducted inquest of the dead body and sent the same for post-mortem examination. 5. At the close of the investigation, police submitted charge sheet against the appellant for the offence under Section 302 IPC. The offence, being exclusively triable by the court of sessions, the case was committed to the court of Sessions. The learned Addl. Sessions Judge, FTC, Tinsukia framed charge under Section 302 IPC against the appellant. The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be trite. 6. In order to prove its case, prosecution examined as many as 11 witnesses including the Medical Officer (P.W. 10) and Investigating Officer (P.W. 11). 7. At the close of examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, made against him and declined to adduce any defence evidence. His plea was a denial one. 8. 7. At the close of examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C. He denied the allegations, made against him and declined to adduce any defence evidence. His plea was a denial one. 8. Considering the evidence, on record and relying on the written dying declaration (Ext. No. 7), which was recorded by Dr. Agarwala, medical officer of Margherita Community Health Centre (MCHC), the learned Addl. Sessions Judge convicted and sentenced the appellant as indicated above. 9. Mr. AI Uddin, learned Amicus Curiae, appearing for the appellant, has submitted that the prosecution case is based on the dying declaration, alleged to be made before Dr. Agarwala of MCHC, Margerita for examination of P.W. 11 and that the author of the said Ext. No. 7 has not been examined by the prosecution. It is submitted that none examination of the said Medical Officer, who recorded the said dying declaration, deprived the accused person from cross-examining the said author, and that this caused much prejudice to the appellant. 10. It is also submitted that in view of non-examination of the Medical Officer, who recorded the dying declaration, the learned Addl. Sessions Judge ought not to have relied on the said Ext. No. 7 and as such, the impugned conviction and sentence cannot be maintained. It is further submitted that P.W. 3 (Sri Chandan Gogoi), who met the injured immediately after the incident i.e. in the court-yard of P.W. 2 clearly stated that the deceased was not in a position to speak. Therefore, it is submitted that, in the absence of any evidence regarding condition of health and mind of the injured person, the alleged dying declaration i.e. the Ext. No. 7 cannot be relied upon to base the conviction. 11. Mr. AI Uddin, learned Amicus Curiae, appearing for the appellant also submitted that the FIR (Ext. 2) was lodged on 29.06.2009 i.e. after two days from the date of occurrence and that that the unexplained delay in filing the FIR is fatal for the prosecution. 12. It is also submitted that in the written FIR (Ext. 2) lodged by P.W. 6, no whisper has been made regarding the dying declaration alleged to be made before P.W. 6. 12. It is also submitted that in the written FIR (Ext. 2) lodged by P.W. 6, no whisper has been made regarding the dying declaration alleged to be made before P.W. 6. Therefore, it is submitted that failure of the informant i.e. P.W. 6 to mention about the dying declaration, in the FIR, also raises doubt about the veracity of his evidence regarding dying declaration. 13. In support of his contention, learned Amicus Curiae has relied on the decisions held in the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors., reported in (2009) 9 SCC 221 and in the case of Amit Kumar & Anr. Vs. State of Punjab, reported in (2010) 12 SCC 285 . 14. Controverting the said argument, advanced by the learned Amicus Curiae, appearing for the appellant, Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State respondent has submitted that though the author of the Ext. No. 7 i.e. the writer of the dying declaration, has not been examined, the oral evidence, given by P.W. 6, regarding dying declaration, alleged to be made by the deceased, is sufficient to base the conviction. It is also submitted, by the learned Addl. Public Prosecutor, that the entire facts and circumstances of this case, coupled with the dying declaration made before P.W. 6, substantiate the prosecution case that the appellant had caused the death of the deceased. 15. In view of the above, learned Addl. Public Prosecutor, Assam has submitted that learned Addl. Sessions Judge committed no error by recording the conviction and sentence as indicated above. 16. In order to appreciate the argument, advanced by the learned counsel, appearing for both the parties and to examine the correctness of the impugned judgment and order, we feel it appropriate to scrutinize the evidence, on record. 17. Having heard the learned counsel, appearing for both the parties and considering the evidence on record, more particularly, the medical evidence given by P.W. 10, who performed autopsy of the deceased, it is found that the deceased died due to shock and hemorrhage, resulting from the injuries sustained by him. 18. 17. Having heard the learned counsel, appearing for both the parties and considering the evidence on record, more particularly, the medical evidence given by P.W. 10, who performed autopsy of the deceased, it is found that the deceased died due to shock and hemorrhage, resulting from the injuries sustained by him. 18. From the evidence of P.W. 2 (Sri Atul Gogoi), it is found that, on the date of occurrence at about 3.00 to 3.30 a.m., he heard the sound of "Bachaow" "Bachaow" and coming out from his house found the deceased lying in his courtyard, in injured condition. He stated that the deceased was in a position to speak and after arrival of the police, he was shifted to Hospital. According to this witness, during investigation police seized one katari (small knife) from the house of one Hussain, situated in front of P.W. 2's house. 19. From the evidence of P.W. 2, it appears that he was the first person to meet the injured in the courtyard and he was present from the time of finding the deceased in the courtyard till he was shifted to Hospital. 20. Supporting the evidence of P.W. 2, Smit Rejina Begum (P.W. 1) stated that, hearing hue and cries; she rushed to the house of P.W. 2 and found the deceased lying in injured condition. 21. P.W. 3 (Sri Chandan Ggoi) stated that, hearing hue and cry he, also rushed to the house of Sri Atul Gogoi and found the deceased lying in the verandah of Sri Atul Gogoi. He further stated that the deceased was not in a position to speak. He further stated that police had shifted the deceased in an ambulance to the hospital. 22. From the evidence of P.W. 2 and 3, it is clearly found that both of them were present from the initial stage of finding the deceased in the court yard of P.W. 2, till he was shifted to Hospital. None of them heard any dying declaration, alleged to be made, by the deceased. The evidence given by P.W. 3 negates the possibility of dying declaration in as much as, according to P.W. 3, the deceased was not in a position to speak. 23. P.W. 4 Smti Karabi Gogoi, who also arrived in the house of Sri Atul Gogoi (P.W. 2) stated that she saw the deceased in injured condition. The evidence given by P.W. 3 negates the possibility of dying declaration in as much as, according to P.W. 3, the deceased was not in a position to speak. 23. P.W. 4 Smti Karabi Gogoi, who also arrived in the house of Sri Atul Gogoi (P.W. 2) stated that she saw the deceased in injured condition. She also did not say anything regarding dying declaration. 24. P.W. 5 Sri Manaranjan Gogoi, the husband of P.W. 4, stated that he met the deceased in injured condition in the courtyard of Sri Atul Gogoi. This witness also did not state anything regarding the dying declaration. 25. Md. Abdul Rashid, who lodged FIR (Ext. No. 2, deposing as P.W. 6, stated that, he hearing alarm (Bachaow, Bachaow i.e. "save me, save me,)" rushed to the house of P.W. 2 and found the deceased lying in injured condition. He further stated that he saw the injury in the abdomen of the deceased. According to this witness, the deceased, who was lying in injured condition told that the accused had assaulted him. This witness further stated that the president of Gaon Panchayat Sri Dhiraj Sonwal had informed the police and accordingly the police visited the place of occurrence. 26. P.W. 7, Md. Hussain Sah stated that he also rushed to the house of P.W. 2 and found the deceased in injured condition. He further stated that he came to know from others that somebody had assaulted the deceased, causing injury to his person. This witness also did not state anything regarding dying declaration. 27. Mr. Diraj Sonwal, deposing as P.W. 8 stated that he was informed by Atul Gogoi (P.W. 2) that a person was lying in injured condition in his campus and accordingly he rushed to the house of P.W. 2, wherein he found the deceased in injured condition. This witness stated that he called ambulance and the deceased was shifted to the Hospital. He also did not state anything regarding dying declaration. 28. P.W. 9 (Sri Bhupen Chandra Neog), who was the scribe of the FIR (Ext. No. 2) stated that he had written the FIR at the instruction of Mr. Abdul Rashid (P.W. 6). He stated that the FIR was read over and explained to P.W. 6 and that he (P.W. 6) signed the same. 29. 28. P.W. 9 (Sri Bhupen Chandra Neog), who was the scribe of the FIR (Ext. No. 2) stated that he had written the FIR at the instruction of Mr. Abdul Rashid (P.W. 6). He stated that the FIR was read over and explained to P.W. 6 and that he (P.W. 6) signed the same. 29. From the above it appears that all the said witnesses except P.W. 8 had appeared in the courtyard of P.W. 2, wherein the deceased was lying in injured condition. From the evidence of the said witnesses, it appears that all of them appeared in the said place and met the deceased almost at the same time and they were present there till the deceased was shifted to hospital. None of them, except P.W. 6, stated about the dying declaration. 30. Considering the attending facts and circumstances of this case, we are of the opinion that if the deceased had made any dying declaration, in the courtyard of P.W. 2, the other witnesses also would have heard the same. The silence of the other witnesses in this regard raises serious doubt about the evidence given by P.W. 6, regarding dying declaration. The evidence of P.W. 3, who stated that the deceased was not in a position to speak, negates the evidence of P.W. 6 that the deceased dying declaration. That apart, the informant (P.W. 6), who deposed about the dying declaration, ought to have mentioned about such dying declaration in the FIR. The failure of the informant to disclose about the dying declaration at the first available opportunity i.e. in the FIR, also raises doubt about the veracity of his evidence regarding dying declaration. 31. In view of the above, considering the entire aspect of the matter we do not find it safe to believe that the deceased made oral dying declaration. 32. The investigating Officer (P.W. 11) exhibited the written dying declaration, alleged to be made before Dr. Agarwala of Marghreita CHC, as Ext. No. 7. The learned trial Judge has relied on the said Ext. 7 to base the conviction. 33. Admittedly, the writer of the said dying declaration i.e. the author of Ext. No. 7 was not examined. In the case of Amit Kumar and another (Supra), the Supreme Court has observed that dying declaration which suffer from infirmity can not be the basis for conviction. 7 to base the conviction. 33. Admittedly, the writer of the said dying declaration i.e. the author of Ext. No. 7 was not examined. In the case of Amit Kumar and another (Supra), the Supreme Court has observed that dying declaration which suffer from infirmity can not be the basis for conviction. In the said case, the Supreme Court has observed: "(ix) normally the court in order to satisfy itself whether deceased was in a fit mental condition or make the dying declaration look up to the medical opinion. But where the eyewitness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanhau Ram Vs. State of MP.)" 34. In the present case, there is nothing, on record, to show that the deceased was in a fit mental condition to make dying declaration i.e. Ext. 7. The evidence of P.W. 3, that the deceased was not in a position to speak, indicates that the deceased was not fit and mentally sound to make the dying declaration. Had the said Medical Officer been examined then the fitness of the maker of the dying declaration could have been ascertained. 35. In the case of Molay Kumar Ganguli (Supra), the Supreme Court observed: "37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to cross-examination in a court of law. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admissibility thereof was taken." 36. In view of non-examination of the author of Ext. 7, the appellant was deprived from cross-examining the person, who had written the dying declaration. This lapse caused much prejudice to the appellant. Therefore, the said Ext. 7 cannot be accepted as substantive evidence against the appellant. 37. In our considered opinion, the learned Addl. Sessions Judge committed error by relying on the said dying declaration (Ext. 7), in holding the appellant guilty. 38. This lapse caused much prejudice to the appellant. Therefore, the said Ext. 7 cannot be accepted as substantive evidence against the appellant. 37. In our considered opinion, the learned Addl. Sessions Judge committed error by relying on the said dying declaration (Ext. 7), in holding the appellant guilty. 38. From the above discussion, we find that except the Ext. 7 i.e. the alleged dying declaration, there is no other evidence against the appellant. In view of inadmissibility of Ext 7, we have no hesitation in holding that the impugned conviction and sentence cannot be maintained. Accordingly, we find sufficient merit in this appeal, requiring interference. The appeal is allowed. The impugned conviction and sentence are set aside. The appellant be acquitted and set at liberty forthwith. 39. Return the LCR. Before we part with this judgment, we acknowledge, the assistance rendered by Mr. A.I. Uddin, learned Amicus Curie and order that an amount of Rs. 7,500/- (Rupees seven thousand five hundred) only be paid to the learned Amicus Curiae as his remuneration by the State Legal service authority.