JUDGMENT Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 29.08.2015 and 31.08.2015 passed by the learned Additional Sessions Judge, 4th Court, Berhampore, Murshidabad in Sessions Trial No. 8/September/2000 arising out of Sessions Sl. No. 150/1993 convicting the appellants for commission of offence punishable under Sections 148/149/304 Part I of the Indian Penal Code and sentencing them to suffer imprisonment for three years each for commission of offence punishable under section 148 of the Indian Penal Code and to suffer rigorous imprisonment for ten years each and to pay a fine of Rs. 5,000/- each, in default, to suffer six months more for commission of offence punishable under section 304 Part I of the Indian Penal Code read with section 149 of the Indian Penal Code with a further direction if the fine be realized, the same be paid to the immediate family members of the deceased, Rupchand Sk. 2. Prosecution case, as alleged, against the appellants is to the effect that on 13.12.1992 around 7.30 p.m. Jahirul Islam, P.W. 10, younger son of Rupchand Sk. (since deceased) was playing music in a tape recorder in his south facing room on the first floor of the building. Sishful Sk. (since deceased) and his sons Basar Sk., Mannan Sk., Hamid Sk. and Yunus Sk. came to the residence of Rupchand and raised objection. Rupchand was in the drawing room (baithak khana) in the ground floor of the home. He came out and the said persons threatened Jahirul with dire consequences if he played music on his tape in future. Mannan Sk. ordered to lift Jahirul and Basar Sk. dragged him from the drawing room threatening he would kill him. Rupchand intervened and asked Jahirul to go away. Thereupon the aforesaid persons left the spot and returned along with others armed with pistol, bomb, etc. Seeing them, Jahirul ran away. Yunush dragged Rupchand out of the room while Mannan and Basar hurled bombs at him. As a result, Rupchand suffered bleeding injury around his testicles. The miscreants attacked the house of Rupchand, ransacked it and ran away. Rupchand was taken to Jangipur Hospital in a rickshaw-van by his wife, Jahama Bibi (P.W. 9). Investigating Officer (P.W. 15), met them and recorded the statement of Rupchand and others. Thereafter, Rupchand was admitted to Jangipur Hospital and thereafter shifted to Berhampore Hospital where he breathed his last on 15.12.1992. Rupchand was taken to Jangipur Hospital in a rickshaw-van by his wife, Jahama Bibi (P.W. 9). Investigating Officer (P.W. 15), met them and recorded the statement of Rupchand and others. Thereafter, Rupchand was admitted to Jangipur Hospital and thereafter shifted to Berhampore Hospital where he breathed his last on 15.12.1992. 3. In the meantime, P.W. 15 went to the village whereupon Nurul Islam, P.W. 8, elder son of Rupchand handed over a written complaint to him. P.W. 15 forwarded the written complaint to the police station and the said complaint was treated as the first information report resulting in registration of Raghunathganj P.S. Case No. 221 of 1992 dated 14.12.1992 under sections 447/326/34 of the Indian Penal Code read with sections 3/4 of the Explosive Substance Act. Upon the death of Rupchand Sk. section 304 of the Indian Penal Code was added to the array of offences. 4. In conclusion of investigation, charge was filed against the appellants and other accused persons and the case was committed to the Court of Sessions and transferred to the Additional Sessions Judge, 4th Court, Berhampore, Murshidabad for trial and disposal. 5. Charges were framed against all the accused persons including the appellants under section 148/149/323/326/304 Part I of the Indian Penal Code. Separate charges were also framed under section 326/304 Part I of the Indian Penal Code read with section 34 of the Indian Penal Code against the appellants Mannan Sk., Basar @ Basar Sk. Appellants pleaded not guilty and claimed to tried. In course of trial, Sishful died. Prosecution examined 15 witnesses and exhibited a number of documents. 6. In the course of his deposition, P.W. 15 stated he had recorded the statement of Rupchand en route to the hospital. However, the recorded statement was not produced in Court. Accordingly, immediately after the conclusion of his examination, prayer was made on behalf of the prosecution to recall the witness and prove the written dying declaration of Rupchand. Such prayer being rejected by the trial Court, prosecution approached this Court. A learned Single Judge of this Court was pleased to allow such prayer. Accused persons challenged the order before the Supreme Court. 7. By judgment and order dated 3rd July, 2014 the Apex Court in Criminal Appeal No. 1307/2014 permitted recall of P.W. 15 for proving the dying declaration of Rupchand. The Court, however, observed as follows:- "20. A learned Single Judge of this Court was pleased to allow such prayer. Accused persons challenged the order before the Supreme Court. 7. By judgment and order dated 3rd July, 2014 the Apex Court in Criminal Appeal No. 1307/2014 permitted recall of P.W. 15 for proving the dying declaration of Rupchand. The Court, however, observed as follows:- "20. In the ultimate analysis we must record that the impugned order merits no interference. We must, however, clarify that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. We also make it clear that whether deceased Rupchand Sk's statement recorded by PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial Court seized of the case shall deal with it independently." Pursuant thereto, P.W. 15 was recalled and the dying declaration was exhibited as Exhibit-8. 8. In conclusion of trial, by the impugned judgment and order dated 29.08.2015 and 31.08.2015 the trial Court convicted and sentenced the appellants, as aforesaid. 9. Mr. Sudipta Maitra, senior counsel, appearing for the appellants argued that the so-called dying declaration of the victim is unreliable. Had P.W. 15 recorded the aforesaid dying declaration, he would certainly have treated the same as first information report. Instead of doing so, P.W. 15 relied on the written complaint of Nurul Islam, P.W. 8 as FIR. The said FIR is completely silent with regard to the aforesaid dying declaration. That apart, P.W. 9 who was present with the deceased in the rickshaw van is completely silent with regard to the dying declaration recorded by P.W. 15. Pointing out the case number recorded at the head of the dying declaration (Ext.8), he argued the document is an ante-dated one. Rickshaw van puller (P.W. 1) claimed Rupchand was senseless while he was being taken to hospital. Hence, the origin of the dying declaration Exhibit-8 which was belatedly produced in Court is shrouded in mystery and the same ought not to be relied upon. Oral dying declaration made to P.W. 9, P.W.s 10 to 12 also suffer from various contradictions and inconsistencies and do not inspire confidence. Hence, the origin of the dying declaration Exhibit-8 which was belatedly produced in Court is shrouded in mystery and the same ought not to be relied upon. Oral dying declaration made to P.W. 9, P.W.s 10 to 12 also suffer from various contradictions and inconsistencies and do not inspire confidence. Making of such oral dying declaration to the aforesaid witnesses, is not corroborated by P.W. 8, the de facto complainant. Such fact is also not reflected in the FIR. P.W. 8 who claims to be an eyewitness at the place of occurrence is doubtful. All other witnesses claimed Rupchand had asked all the inmates to go inside the house. Independent witnesses have not supported the prosecution case. Prosecution case is, therefore, riddled with various contradictions and has not been proved beyond doubt. He submitted written submissions to supplement his oral arguments. 10. On the other hand, Mr. Avik Ghatak, appearing for the State submitted that P.W. 15 unequivocally stated that he had met the injured Rupchand Sk and others while they were proceeding to the hospital. He recorded the statement of the injured. Foundation with regard to the origin of the dying declaration recorded by P.W. 15 was, therefore, laid in the course of examination of the said witness. Nonproduction of the document was an act of remissness on behalf of the prosecution which was set right by recalling the aforesaid witness as per direction of the Apex Court. 11. Ample evidence has come on record that the injured was conscious and capable of making the statement which was reduced into writing by P.W. 15. Contents of the dying declaration is corroborated by the eye-witness (P.W. 8) and other evidence on record including medical evidence. There is substantial corroboration between the oral dying declaration made to P.W. 9, P.W.s 10 to 12 and the written dying declaration reduced into writing by P.W. 15. 12. Remissness in investigation particularly the failure to produce the written dying declaration of the victim in Court in the first instance and other deficiencies during investigation cannot affect the intrinsic truth of prosecution case. He relied on written submission and various authorities in support of the aforesaid propositions. Accordingly, he prayed for dismissal of the appeal. Learned counsel appearing on behalf of the victim has supported the contention of the State. 13. He relied on written submission and various authorities in support of the aforesaid propositions. Accordingly, he prayed for dismissal of the appeal. Learned counsel appearing on behalf of the victim has supported the contention of the State. 13. Analysis of the evidence on record shows that the prosecution rests on the following pillars:- a) Oral dying declaration of the victim made to P.W.s 9, 10 to 12; b) Dying declaration recorded by P.W. 15, investigating officer; c) Version of P.W. 8 who claims to be an eye-witness. Let me evaluate the evidence on record to see whether the aforesaid evidence are sufficient to prove the prosecution case beyond doubt. Evidence On Record:- P.W.1 & 2 are the rickshaw pullers who took the deceased to the hospital after the incident. P.W.1 was declared hostile. He was cross-examined with regard to his previous statement to police where he had claimed that the victim had made dying declaration on the way to hospital. In cross-examination, the witness claimed that the victim was in senseless condition. P.W.2 other rickshaw puller also not supported the prosecution case. He was cross-examined at length with regard to his previous statement to the police where like P.W.1 he had claimed that the injured had made a dying declaration on the way to the hospital. Both the witnesses claimed Mannan had obstructed them on the way to hospital. P.W.3 is the neighbour of the deceased and P.W.4 is his wife. Although the deceased in his dying declaration to P.W.15 (Ext.8) stated that the aforesaid persons had witnesses the incident, P.W.3 & P.W.4 in court resiled from their previous statements to the police wherein they had implicated Mannan and Basir as the assailants and claimed themselves to be post occurrence witnesses. Accordingly, they were declared hostile and cross-examined at length with regard to their previous statements to the police. P.W.8 to P.W.12 are the relations of the deceased. P.W.8, Nurul Islam is the de facto complainant and an eyewitness. He stated on the day of incident his younger brother was playing tape recorder in the house. Sisful and his sons Basar, Mannan, Yunus and Hamid came to their house and Mannan ordered others to lift Jahirul. Basar tried to drag him out from the drawing room. His father, Rupchand, intervened and told Jahirul not to play the tape recorder. He stated on the day of incident his younger brother was playing tape recorder in the house. Sisful and his sons Basar, Mannan, Yunus and Hamid came to their house and Mannan ordered others to lift Jahirul. Basar tried to drag him out from the drawing room. His father, Rupchand, intervened and told Jahirul not to play the tape recorder. Accused persons threatened that if the tape recorder was again played Jahirul would face dire consequences. Thereafter the miscreants left the spot. They again returned along with others and tried to take away Jahirul. He, Anisur and his father Rupchand resisted them. At that time Yunus dragged his father in front of the road. Basar and Mannan threw bombs towards his father. Bomb thrown by Mannan hit his father in the groin. His father fell down with bleeding injuries. He was taken to Jangipur hospital for treatment. Thereafter, he was shifted to Berhampore hospital where he expired. He lodged written complaint. In cross-examination, he stated that he heard sound of three bombs and saw his father in bleeding condition. He referred to a criminal case lodged by one Taleb, a relation of Sisful. P.W.9, Jahama Bibi, wife of the deceased is a post occurrence witness. She accompanied the deceased to Jangipur hospital. She deposed that her husband told her that Mannan, Sisful, Yunus, Rejjak, Basar and others threw bombs at him. In cross-examination, she stated that at the time of altercation her husband drove herself, Nurul and Anisur inside their house. P.W.10, Jahirul, is the younger son of the deceased Rupchand. He was playing tape recorder on the date of incident. Over this a dispute cropped up. Yunus asked others to drag him out. Thereafter Basar dragged him. His father, elder brother Nurul Islam resisted them. His father asked him to leave the place. He also asked other accused persons to go away. Thereafter, he left the place. Subsequently, he heard bomb explosions. He rushed to the spot and found his father was lying on the ground with bleeding injuries. His father stated that Mannan and Basar threw bomb. P.W.11, Hasina Banu Bibi, is the wife of Nurul. She has corroborated the evidence of P.W.8, her husband. She is also a post occurrence witness. She stated that when she arrived at the spot she found her father-in-law in serious condition. His father stated that Mannan and Basar threw bomb. P.W.11, Hasina Banu Bibi, is the wife of Nurul. She has corroborated the evidence of P.W.8, her husband. She is also a post occurrence witness. She stated that when she arrived at the spot she found her father-in-law in serious condition. She claimed that Mannan and Basar had thrown bomb at him. She saw the accused persons left the place. P.W.12, Anisur Rahaman, is the brother-in-law of P.W.8. He stated over playing of tape recorder by Jahirul a dispute cropped up. Mannan and Basar dragged Jahirul from the room. They resisted. The deceased asked them to go away. He also requested the accused persons to leave the house. They, accordingly, left the place. Thereafter he heard bomb blasts. He found blood oozing out from Rupchand. The latter stated Yunus, Mannan, Basar and others had assaulted him. Mannan threw bomb which caused the injury. Remnants of bomb were seized by the police at the place of occurrence. He was an eyewitness to the seizure. P.W.13 & P.W.14 are the medical witnesses. P.W.13 examined the victim at Jangipur S.D. Hospital. He was identified by Jahena Bibi, P.W.9 the wife of the deceased and Sagir Sk, P.W.1 the rickshaw puller. He found that the general condition of the patient was poor. Pulse was feeble, the patient was very pale. There were abrasions in both the lower limbs. There was severe lacerated injury over back of left thigh. Size of the injury was 12" X 4" X bone depth. Patient was admitted under surgeon. Injury was grievous in nature and may have been caused by hurling of bomb. He proved the injury report (Ext.5). In cross-examination, he stated that he had not written the names of the assailants in the injury report. P.W.14 is the post mortem doctor. He opined that the injuries may be caused by hurling of bombs. Death was due to shock from pulmonary embolism resulting from fracture of left femoral/ante mortem in nature. He proved the post mortem report. P.W.15 is the investigating officer. He deposed on 13.12.92 around 20.35 hours information was received at P.S. from one Paresh Sarkar, Prodhan of Jamuar Gram Panchayat that a chaos (gandogol) was going on in village Naith amongst the Muslims. Information was diarised as G.D. no.394 (Ext.7) dated 13.12.1992. Thereafter he left for village Naith. He proved the post mortem report. P.W.15 is the investigating officer. He deposed on 13.12.92 around 20.35 hours information was received at P.S. from one Paresh Sarkar, Prodhan of Jamuar Gram Panchayat that a chaos (gandogol) was going on in village Naith amongst the Muslims. Information was diarised as G.D. no.394 (Ext.7) dated 13.12.1992. Thereafter he left for village Naith. On the way at village Barala he met a rickshaw puller who was taking the injured Rupchand and his wife to hospital. He examined Rupchand and recorded his statement. He also recorded the statement of the rickshaw puller, wife of the injured and directed them to take the injured to hospital. On the very night he went to the place of occurrence and received written complaint from Nurul Islam which he forwarded to O.C., Raghunathganj P.S. for registering F.I.R. He seized wearing apparels of the deceased, blood stained articles as well as remnants of bombs from the place of occurrence under a seizure list. He prepared the rough sketch map with index. He collected the injury report and the post mortem report and submitted charge sheet. Subsequently, the witness was recalled and the written dying declaration recorded by him was exhibited (marked as Ext.8) Oral Dying Declarations Of The Victim:- From the aforesaid evidence, it appears the deceased made oral dying declaration on two occasions. Firstly, the victim made oral dying declaration at the spot to his younger son Jahirul Islam, P.W.10, daughter-in-law, P.W.11 and P.W.12, brother-in-law of P.W.8. Their evidence in this regard, however, has not been corroborated by P.W.8, the de facto complainant who claims to have witnessed the incident and was present at the spot when the aforesaid witnesses came to the place of occurrence. There is also no reflection of the oral dying declaration in the first information report lodged by P.W. 8 soon after the incident. Subsequent dying declaration is said to have been made to P.W.9 by the deceased on the way to the hospital. This fact is also clearly absent in the first information report recorded by P.W.8, although P.W.9 claimed that her son knew that the deceased had made the dying declaration to her. First information report need not be an encyclopaedia of all facts. This fact is also clearly absent in the first information report recorded by P.W.8, although P.W.9 claimed that her son knew that the deceased had made the dying declaration to her. First information report need not be an encyclopaedia of all facts. However, a significant omission in the FIR of a vital fact like dying declaration made by the victim to a relation, if within the knowledge of the maker, would throw serious doubt with regard to the existence of such fact. From this perspective, I am of the opinion when the oral dying declarations of the deceased is not corroborated by the star witness, P.W.8 either in his F.I.R. or in his deposition in Court, such declaration appears to be doubtful and does not inspire confidence. Dying Declaration Recorded By PW 15 (Ext 8):- Exhibit 8 has been strongly assailed on behalf of the appellants on various courts. It is submitted there is nothing on record to show that the victim was conscious and capable of making such statement. In fact, P.W 1 claimed that the victim was senseless. Dying declaration was belatedly produced by P.W 15 on recall. Particulars of the FIR registered on the next day is recorded in the document recording the dying declaration. Hence, the documents appear to be subsequently manufactured and its probative value is highly dubious. P.W 9 who was present with her husband when the dying declaration was recorded by P.W. 15 is completely silent in that regard. It is also submitted that this dying declaration is at variance with the oral dying declaration of the deceased. 14. It is further submitted no explanation is offered by P.W. 15 why this dying declaration was not treated as FIR in the present case. Subsequent written complaint of P.W. 8 which was treated as FIR does not refer to this declaration. 15. Learned lawyer for the State strongly relied on the aforesaid dying declaration. He contended that the dying declaration was contemporaneously recorded by P.W. 15 and the contents of the dying declaration inspires confidence. Had the document been a manufactured one, names of all the accused persons would have been incorporated therein. 16. On the other hand statement of the deceased gives an honest depiction of the incident implicating only Mannan and Basar. 17. Had the document been a manufactured one, names of all the accused persons would have been incorporated therein. 16. On the other hand statement of the deceased gives an honest depiction of the incident implicating only Mannan and Basar. 17. I have given anxious consideration to the rival submissions of the parties, more particularly, as the dying declaration in the present case saw the light of day nine years after the incident. P.W 15 (I.O.) deposed that he recorded the statement of the injured Rupchand in the course of transfer to the hospital. However, the statement was not produced in Court immediately after the conclusion of the examination of the said witness, prosecution made a prayer to recall him to prove the dying declaration. Trial court refused such prayer which, however, came to be allowed by this court. The Apex Court by order dated 3.7.2014 permitted recall of P.W. 15, inter alia holding that failure to exhibit the said document was not inherent or latent wedge in the prosecution case, but an act of oversight or remissness on the part of the prosecution. As cause of justice ought not suffer due to such oversight, the court permitted the witness to be recalled to prove document. It, however, did not express any opinion whether the statement recorded by P.W 15 is a dying declaration or not or what is its evidentiary value. Statement of a deceased relating to circumstances leading to his death is admissible under section 32(1) of the Evidence Act. The aforesaid provision in the Evidence Act is an exception to the general rule of inadmissibility of hearsay evidence. However, unlike English Law, whether statement of a deceased is admissible only when it is made "in contemplation of death". Any oral or written statement of the deceased relating to circumstances leading to his death, inadmissible when the cause of death is a fact in issue and the statement has some proximate nexus with the death. Immediacy of demise or contemplation of death is not a sine qua non for admission of such statement. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) SCC(Cri) 487 , the Court enunciated as follows:- "21. Immediacy of demise or contemplation of death is not a sine qua non for admission of such statement. In Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) SCC(Cri) 487 , the Court enunciated as follows:- "21. Thus, from a review of the authorities mentioned above and the clear language of Section 32(1) of the Evidence Act, the following propositions emerge: (1) Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice. (2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a straitjacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement may be admissible under Section 32. (3) The second part of clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring. (4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which may be relevant to prove a case of homicide would be equally relevant to prove a case of suicide. (5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant." 18. In the present case the injured had suffered grievous injuries due to bomb blast. He was bleeding profusely and was being carried to the hospital. Hence, statement made by him to the investigating officer P.W 15 under such circumstances as to how he suffered the grievous injuries would clearly fall within the ambit of dying declaration admissible under section 32 of the Evidence Act. Fact that the deceased survived for two days and ultimately died on 15.12.1992 would not in our opinion affect the admissibility of the aforesaid piece of evidence. The more important question, however, is its probative value. As discussed earlier, it is contended there is no reference of this document in the FIR and PW 15 has failed or neglected to explain why in spite of recording of such statement it was not treated as one. The more important question, however, is its probative value. As discussed earlier, it is contended there is no reference of this document in the FIR and PW 15 has failed or neglected to explain why in spite of recording of such statement it was not treated as one. I do not see much substance in the aforesaid submissions. Evidentiary foundation of the creation of the said dying declaration was unequivocally laid by PW 15 in his deposition. On receiving information with regard to a chaos in the village the police officer proceeded towards the spot. He met the injured who was being transported in a rickshaw van to the hospital. He examined the injured and recorded his statement (Ext 8). The document has been doubted as the police case number (which was subsequently recorded) is noted at the head of the document. Hence, it is argued that the document is ante dated and was subsequently manufactured. I am unconvinced by such submission also. Firstly, no question was put to PW 15, the author of the document with regard to the incorporation of the police case number at the head of the document. It is possible that such incorporation was subsequently made in English after the registration of the FIR and did not affect the veracity of the dying declaration which had already been recorded in Bengali in the said document. Furthermore, the contents of the dying declaration has a ring of truth and refutes all insinuations with regard to its falsehood and fabrication. The dying declaration, inter alia, reads as follows:- "There was a dispute between my neighbour Sishful and my son Jahirul over playing of music. They had entered our house and tried to drag out and assault Jahirul. I obstructed them and assured that my son will not play tape recorder in further. I did not allow Jahirul to come out before them kept all of them inside the room. Thereafter I stood in front of the drawing room and requested the miscreants not to create trouble. But Mannan and Basar suddenly threw bombs. Bomb hurled by Mannan caused grievous injury. My lungi came off and I became naked. My wife and others are taking me to hospital. My neighbour Habibur and his wife have seen everything. He tried to save me. Mannan stopped us at Sannyasidanga more". 19. But Mannan and Basar suddenly threw bombs. Bomb hurled by Mannan caused grievous injury. My lungi came off and I became naked. My wife and others are taking me to hospital. My neighbour Habibur and his wife have seen everything. He tried to save me. Mannan stopped us at Sannyasidanga more". 19. Having examined the contents of the aforesaid dying declaration, I am in agreement with the learned counsel appearing for the State had this declaration been a manufactured one, effort would have been made to implicate all the accused persons. On the other hand the dying declaration gives an honest depiction of the incident which commenced over a trifle issue of playing tape recorder but snowballed into unfortunate demise of Rupchand due to throwing of bombs by Basar and Mannan. 20. In this backdrop, I am of the opinion that Exhibit 8 is neither a manufactured document nor is the narration contained therein an exaggerated or fanciful one. I am unable to accept the submission of learned Senior Counsel that victim was unconscious and incapable of making the statement. Stray comment of the rickshaw puller, P.W. 1, a hostile witness in that regard is not supported by other witnesses particularly P.W. 9. I am inclined to give credence to the version of P.W. 9, wife of the deceased, as to the condition of the victim over P.W. 1, an unreliable witness who appears to have been won over. Had the victim been senseless, P.W. 13 would have noted such fact in the injury report (Ext. 5). Circumstances in the present case particularly evidence of P.W.s 8 to 12 give rise to an irresistible inference that the victim was conscious and capable of making statement. Hence, absence of certificate by doctor with regard to the fit state of mind of the victim would not render statement the dying declaration inadmissible in law [see Laxman Vs. State of Maharashtra, (2002) SCC(Cri) 1491 ]. Hence, I am of the opinion that the dying declaration made by the deceased Rupchand Sk. is credible one and gives a truthful narration of the incident resulting in his death. In Paniben (Smt) Vs. State of Gujarat, (1992) 2 SCC 474 , the Apex Court analyzed the law relating to the admissibility of dying declaration and held as follows:- "18. is credible one and gives a truthful narration of the incident resulting in his death. In Paniben (Smt) Vs. State of Gujarat, (1992) 2 SCC 474 , the Apex Court analyzed the law relating to the admissibility of dying declaration and held as follows:- "18. 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 insists that the dying declaration should be of such a nature as to inspire 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, prompting or a product of 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 assailants. 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. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munna Raja v. State of M.P.) (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state of make the declaration. (R. Ramachandra Reddy v. Public Prosecutor). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (R. Ramachandra Reddy v. Public Prosecutor). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of M.P.) (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.) (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.) (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu) (viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar) (ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.) (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)" Though a truthful and credible dying declaration may be the sole basis of conviction, as a rule of prudence I have made an endeavour to examine whether the dying declaration finds corroboration from other evidence on record particularly P.W. 8, who happens to be an eye-witness. Probative value of P.W. 8 (eye-witness) and other evidence:- 21. Names of Habibur Rahaman (PW 3) and his wife (PW 4) have been taken in the dying decoration. These witnesses unfortunately appear to have been won over. They resiled from their previous statements to the police and claimed to be post occurrence witnesses. They were extensively cross-examined with regard to their previous statements to the police that Mannan Sk. and Basar Sk. had thrown bombs at the deceased resulting in grievous injuries. In the absence of corroboration from PW 3 and 4 one is left with the evidence of the relations of the deceased, namely, PW 8 to 12. PW 8 claims to be an eyewitness and has corroborated the aforesaid dying declaration. and Basar Sk. had thrown bombs at the deceased resulting in grievous injuries. In the absence of corroboration from PW 3 and 4 one is left with the evidence of the relations of the deceased, namely, PW 8 to 12. PW 8 claims to be an eyewitness and has corroborated the aforesaid dying declaration. In addition thereto, he claimed that his father was dragged by Yunus Sk to the spot and thereafter Mannan Sk. and Basar Sk. threw bombs at him. It is argued P.W. 8 was not an eyewitness since after the initial submission the deceased Rupchand Sk. had told all inmates to go inside the room. However, no evidence is forthcoming that P.W. 8 left the spot as per dictate of his father. On the other hand, P.W. 8 deposed he stood behind his father and witnessed the incident Hence I am convinced that P.W. 8 was an eye- witness to the incident. Evidence of other witnesses, namely, PW 10, 11 and 12 establish beyond doubt the initial skirmish between the deceased and his family members on one hand and the appellants on the other hand. They also heard sound of bomb blasts and the deceased lying with bomb blast injuries at the spot. Medical evidence of P.W.s 13 and 14 (PM doctor) also corroborate the genesis of the incident as disclosed in the dying declaration. Corroboration of a dying declaration need not be of all materials facts. General corroboration of the facts stated in the dying declaration is sufficient to rely on it and come to a finding of guilt against the accused persons. The aforesaid evidence on record particularly of the eye-witness (P.W. 8) substantially corroborates the contents of the dying declaration (Ext. 8). However, I find P.W. 8 had sought to make some exaggeration in his deposition by claiming that Yunus Sk had dragged the deceased out of the house. No such role is attributed to Yunus Sk in the dying declaration. 22. Hence, I am inclined to extend the benefit of doubt to the Yunus Sk, Rejjak Sk. and Sejjak Sk. to whom no specific overt act has been attributed in the aforesaid dying declaration (Ext. 8). In the light of the aforesaid discussion, I acquit Yunus Sk., Rejjak Sk. and Sejjak Sk. from the charges levelled against them. 23. In the light of the aforesaid discussion, I convert the conviction of Mannan Sk. and Sejjak Sk. to whom no specific overt act has been attributed in the aforesaid dying declaration (Ext. 8). In the light of the aforesaid discussion, I acquit Yunus Sk., Rejjak Sk. and Sejjak Sk. from the charges levelled against them. 23. In the light of the aforesaid discussion, I convert the conviction of Mannan Sk. and Abul Basar under section 148/149/304 Part-I to one under section 304 Part I read with Section 34 of the Indian Penal Code and direct that they shall suffer rigorous imprisonment for 10 years each and to pay fine of Rs.5,000/- each (Rupees Five Thousand Only), in default to suffer a further period of rigorous imprisonment for six months on such count. 24. The appeal is partly allowed. 25. Period of detention suffered by the appellants, namely, Mannan Sk. and Abul Basar during the period of investigation, enquiry and trial shall be set off against the substantive sentence, as aforesaid, in terms of Section 428 of the Code of Criminal Procedure. 26. Appellants, namely, Yunus Sk, Rejjak Sk. and Sejjak Sk. shall be discharged from their bail bonds after expiry of six months in terms of Section 437A of the Code of Criminal Procedure. 27. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 28. Urgent photostat certified copy of this order, if applied for, be supplied 29. Expeditiously after complying with all necessary legal formalities. I agree.