JUDGMENT : Partha Sarathi Sen, J. 1. In this appeal the judgement of conviction and order of sentence both dated 21.05.1985 as passed by the learned Sessions Judge, Purulia in Sessions Trial No.13 of 1985 arising out of Sessions Case no. 47 of 1984 has been assailed. By the impugned judgement the trial court found the present appellant guilty under Section 304(1) IPC and thus convicted him to suffer R.I for 7 years with a fine of Rs.2000/-in default to undergo further R.I for two years. 2. The appellant felt aggrieved and thus preferred the instant appeal. 3. For effective disposal of the instant appeal the facts leading to initiation of the aforesaid Sessions Case is required to be dealt with in a nutshell. 4. On 03.10.1983 one Paltu Rajak of Village Nadiara gave a statement before one Phani Bhusan Panda, S.I of the said police station to the effect that his nephew Krishna Pada Rajak of village Belkuri came to his house on the said day at about 12p.m. It was his further version that since the said Krishna Pada Rajak was suffering from mental illness his father had put an iron hand cuff on the hands of his said nephew. It was his further version that his nephew’s in-laws’ house is situated in the self same village and thus after having meal at his home, the informant and one Shanti Rajak along with the said Krishna Pada Rajak were proceeding to the house of the in-laws of the said Krishna Pada Rajak. 5. It has been stated further by the informant before the police officials of the said police station that in the midst of the way the said Krishna Pada Rajak noticed that some goats were eating paddy in his paddy field to which the said Krishna Pada Rajak became annoyed and abused the cow boy. It is the further version of the informant that immediately thereafter the said cow boy went to a nearby club of the said village and on being informed about the incident, one Montu Gope, one Suegeon Gope and one Lakshmikanta Pramanik came out from the club and at that time the said Surgeon Gope was holding a spear in his hand. Thereafter the said Mantu Gope snatched the said spear from the hands of the said Surgeon Gope and gave a blow of such spear on the left side of the chest rib of Krishna Pada Gope. The said Krishna Pada Gope tried to resist such blow of spear by his hand as a result whereof he suffered bleeding injury on his left hand finger and the said spear thereafter hit the left side of his chest and on account of such blow of spear the said Krishna Pada Gope suffered a penetrating injury on his left chest wall and he was bleeding profusely then. It has been further stated that all the assailants named above came out of the said club with an object to assault the said victim and apart from the principle assailant, the other two assailants were abetting the principle accused by saying ‘mar mar’(hit-hit). It has been stated further that the said incident took place at 4:30/5 p.m. on the said day and the said incident was witnessed by the said Shanti Gope and one Lakshmi Narayan Gope of village Belkuri. The victim was thereafter brought to a ‘sadhu ashram’ wherefrom he was taken to Purulia Sadar Hospital where he was admitted. 6. On the basis of this aforesaid complaint Purulia(M) P.S case no.5 dated 03.10.1983 under Sections 326/34 IPC was started. Since the said Krishan Pada Rajak subsequently succumbed to his injury Section 304 was added. 7. Investigation was taken up and on completion of the same charge sheet under Sections 326/304/34 was submitted against the three accused persons. 8. After commitment the learned trial court by its order dated 20.02.1985 considered the charges against the three accused persons and on consideration of the entire materials the trial court framed charges under Sections 304(1) and 109 IPC against the accused Hareram Gope @ Sarjew Gope @ Surgeon Gope and Lakshmi Kanta Pramanik and a separate charge under Section 304(1) IPC was framed against the present appellant Mantu Gope. 9. Trial court record reveals that in order to bring home the charges as against the accused persons the prosecution has examined 14 witnesses in all and several documents have been exhibited on their behalf. On behalf of the defence no evidence was adduced. 9. Trial court record reveals that in order to bring home the charges as against the accused persons the prosecution has examined 14 witnesses in all and several documents have been exhibited on their behalf. On behalf of the defence no evidence was adduced. However from the trend of cross examination of the prosecution witnesses and the answers as given by the accused persons in course of their respective examinations under Section 313 CrPC it appears to this Court that the defence case is based on clear denial and false implication. 10. As discussed supra on consideration of the entire evidence both oral and documentary learned trial court found the present appellant guilty under Section 304(1) IPC, however the said court acquitted the other two accused persons namely; Hareram Gope and Lakshmi kanta Pramanik from the charges under Sections 304(1) and 109 IPC. 11. From the trial court record it reveals that the informant of the said case was examined as PW1. The brother-in-law of the deceased was examined as PW2. PW3, PW4 and PW7 are the residents of village Belkuri while PW5 is the father of the deceased. PW6 is the doctor of Purulia Sadar Hospital who performed autopsy over the dead body of the deceased. PW8 is another doctor of Purulia Sadar Hospital who on the relevant day admitted Krishna Pada Pramanik in the said hospital. PW9 is the Radiologist of the said hospital. PW 10 is the R.O. PW11 is another resident of village Belkuri. PW12 is a surgeon of Purulia Sadar Hospital who had treated the victim Krishna Pada Rajak at Purulia Sadar Hospital PW13 is the I.O of the said case. PW14 is an ASI of police of the self same P.S. 12. In course of his submission learned advocate for the appellant draws attention of this Court to the evidence of PW1, PW2 and PW3. It is submitted that though the prosecution claimed that the aforesaid three prosecution witnesses are the ocular witnesses of the alleged incident but it would reveal from the trial court record that the evidence of the aforesaid three prosecution witnesses are contradictory. It is further submitted that it would reveal further that the evidence of PW2 is no way supporting the prosecution case and even then he was not declared hostile by the prosecution which definitely damages the genuineness of the case of the prosecution. It is further submitted that it would reveal further that the evidence of PW2 is no way supporting the prosecution case and even then he was not declared hostile by the prosecution which definitely damages the genuineness of the case of the prosecution. It is further submitted that while passing the impugned judgement learned trial court had failed to visualize that the alleged dying declaration as recorded by PW12 is not admissible in the eye of law since from the trial court record it would reveal that at that material time the victim had no capacity to give such declaration and in the said alleged dying declaration there was no certification of PW12 with regard to the physical condition and mental alertness of the victim. It is further submitted that the father of the deceased i.e. PW5 also did not support the case of the prosecution. It is thus submitted that it is a fit case for allowing the instant appeal by setting aside the impugned judgement of conviction and order of sentence. 13. Per contra, Ms. Faria Hossain, learned APP submits before this Court that before the learned trial court it was never proved that the alleged assault has been made by the present appellant out of any provocation. It is submitted that the evidence of PW1 and PW3 may not be disbelieved in view of the fact that there is no iota of evidence that there existed previous animosity between PW1 and PW3 and the present appellant. It is submitted that PW12 duly recorded the dying declaration of the victim when he was physically fit and mentally alert which is evident from the evidence of PW12 and thus there cannot be any iota of doubt with regard to the genuineness of the said dying declaration. It is lastly submitted that the evidence of PW1 and PW3 also gets due corroboration from the evidence of PW6 and PW12 and therefore the instant appeal is liable to the dismissed. 14. Since in the impugned judgement the learned trial court has elaborately discussed the oral evidence of the prosecution witnesses as well as the exhibits on behalf of the prosecution, I feel it unnecessary to discuss those evidence all over again in detail except to the extent the same is necessary for the disposal of the instant appeal. 15. 14. Since in the impugned judgement the learned trial court has elaborately discussed the oral evidence of the prosecution witnesses as well as the exhibits on behalf of the prosecution, I feel it unnecessary to discuss those evidence all over again in detail except to the extent the same is necessary for the disposal of the instant appeal. 15. On perusal of the evidence of PW1 it appears to this Court that his examination-in-chief is the reproduction of his earlier version as stated by him before the police which has been registered as FIR. In course of his examination-in-chief PW1 specifically described that on the relevant day at about 4:30/5 p.m. the occurrence took place when he was taking his nephew Krishna Pada Rajak to his father-in-law’s house. He further stated that on the midway his nephew Krishna Pada Rajak noticed that some goats were eating paddy in his field to which he became angry and abused the cow boy and when the said cow boy reported the matter to a local club, the aforementioned three accused persons came out from the said club and one Sarjew was then holding a spear on his hand. He further stated that the present appellant told Sarjew to kill the said Krishna Pada Rajak. It is his further version that with folded hands he requested Surjew not to kill his nephew but all on a sudden the present appellant Mantu Gope snatched the spear from the hands of Sarjew and gave a blow on the left rib of the victim which caused serious injury on the left side of his chest. It was his further version that on account of such assault Krishna Pada Rajak’s first left finger also got cut down and thereafter the three accused persons fled away from the P.O. He stated further that thereafter Krishna Pada Rajak was taken to Purulia Sadar Hospital where he was admitted. In course of cross-examination of PW1 though he stated that on account of mental illness Krishna Pada Rajak sometimes became violent but nothing could be elicited from his mouth to substantiate that the version of PW1 as made by him in his examination-in-chief as well as in the FIR are contradictory and/or those are incorrect. 16. At this juncture I propose to look to the evidence of PW3 who is a resident of village Belkuri. 16. At this juncture I propose to look to the evidence of PW3 who is a resident of village Belkuri. PW3 testified that on the relevant day at about 4:30/5 p.m when he was coming to his house from Purulia he noticed Surgeion Gope with a spear in his hand and he further noticed that the present appellant Mantu Gope took the said spear from Surgeon and thereafter gave a piercing blow with the said weapon just below the left rib of the said Krishna Pada Rajak. It was his further version that at that time Krishna Pada Rajak was accompanied by PW1 and PW2 who are his maternal uncle and his brother-in-law respectively. He further testified that seeing such incident he went to the house of Krishna Pada Rajak to give such information. PW3 was extensively cross-examined on behalf of the defence but nothing could be elicited from his mouth to substantiate that the version of PW3 in his examination-in-chief is not correct. 17. At this juncture I propose to look to the evidence of PW6 i.e. the doctor who performed Post Mortem over the dead body of the deceased. In course of his examination-in-chief PW6 stated that while performing the autopsy he found the following injuries on the person of the deceased namely:- “1) Stitched wound over left lateral chest measuring 11/2 in length (Over 6th and 7th intercostal space region). 2) Stitched wound below injury no.1 measuring 1 1/2 in length. 3) Left forefinger fractured at the junction of wand and finger.” He further testified that on dissection he noticed that left pleura, left lung are injured and thoracic cavity was full of dark fluid and blood and both the wounds penetrated up to thoracic cavity. He stated further that in his opinion the death was due to shock and haemorrhage as a result of the above meted injuries which are ante mortem and homicidal in nature. It is pertinent to mention that cross-examination of PW6 was declined. 18. As discussed above the deceased after suffering injury was admitted at Purulia Sadar Hospital under PW12 who performed O.T over the person of the victim and his version regarding his finding during O.T is reproduced hereunder in verbatim:- “At the O.T-On exploration 2 ribs sharp out 4th, 5th (left side), injury of left lung, query? Liver injuries. Generel condition-very very low. Liver injuries. Generel condition-very very low. So, major operation (thoracotomy) could not be done, wound repaired, but not lungs (no leakage detected at that time), water seal drainage given patient's relatives were unable to procure blood.” 19. At this juncture if we conjointly look to the bed head ticket of the victim i.e. Exhibit 3/1 vis-à-vis the later part of examination-in-chief of PW12 it reveals that PW12 has stated it categorically that on 04.10.1983 at about 11:15 am in the presence of the father of the deceased he recorded the dying declaration of the deceased. 20. On perusal of the said dying declaration as recorded by PW12 i.e. the treating doctor of Purulia Sadar Hospital it reveals to me such dying declaration was recorded in the following fashion by the said doctor. “Patient states that he was assaulted by Mantu Gope, son of Adhar Gope of Belkuri-assaulted with Bellam. Mantu was associated with some Lakashiram Permanik and Sarjen Gope, son of Kalipade Gope. Sd/-N.Bhattacherjee. This is in my hand (This portion is marked Ext.3/1). Statement was taken in front of Sri Buddheswar Mahato of Belkuri and he signed in the statement in my presence. This is his signature ((identifies ext.3).” 21. At this juncture if I weigh the oral evidence of PW1 and PW3 who according to the prosecution are the ocular witnesses vis-à-vis the evidence of PW6 (autopsy surgeon) and PW12 (the treating doctor) we find the ocular evidence of PW1 and PW3 are not only supporting each other but also their versions with regard to the involvement of the present appellant in the alleged crime and the mode of assault by a spear gets due support and/or corroboration from the evidence of PW6 and PW 12. 22. Admittedly PW2 according to the prosecution is another eye witness to the alleged incident. He narrated the entire incident as took place on the relevant day and hour at the P.O but for the reason best known to him he did not mention the names of the assailants and even then for the reason best known to the prosecution he was not declared hostile. 23. He narrated the entire incident as took place on the relevant day and hour at the P.O but for the reason best known to him he did not mention the names of the assailants and even then for the reason best known to the prosecution he was not declared hostile. 23. In considered view of this Court the evidence of PW2 however could not dilute the veracity of the evidence of PW1 and PW3 in view of the fact that they are the ocular witnesses to the alleged incident and this Court finds no discrepancy in their testimonies and on the contrary their testimonies gets due corroboration from the testimonies of the two doctors as mentioned above. 24. In course of his argument learned advocate for the appellant was very vocal with regard to the acceptability of the alleged dying declaration since according to the learned advocate for the appellant from the evidence of PW12 it would reveal that prior to recording the dying declaration he made no attempt to ascertain as to whether the patient was conscious or not and/or fit to make such statement. 25. It has been submitted further that from the evidence of PW12 it would reveal that at the time of recording of such alleged dying declaration the physical condition of the patent was deteriorating. 26. In considered view of this Court such argument of the learned advocate for the appellant is not at all convincing in view of the fact that from the oral evidence of PW12 vis-à-vis the treatment sheet i.e. Exhibit 3 it would reveal that prior to recording of dying declaration he made a requisition to the ward master of the said hospital to inform the O/C concerned to take steps for getting the statements of the victim and after waiting for a reasonable time on the self same day at about 11:15 am he started recording the statement of the victim in the fashion as indicated supra. 27. As rightly pointed out by Ms. Faria Hossain, Ld. 27. As rightly pointed out by Ms. Faria Hossain, Ld. APP for the State that on overall assessment of the evidence of PW12 it would reveal that at the time of recording the dying declaration i.e. at 11:15 am the said doctor found that his patient was in a state of giving such declaration and accordingly such dying declaration was recorded and from the testimony of PW12 it would reveal further that the condition of patient started deteriorating on the self same day about 6 p.m. 28. It is settled principle of law that there is no specific form for recording of dying declaration. 29. The court should be satisfied that the deceased was in a fit state of mind at the time of making such statement and that it was not outcome of tutoring or prompting or imagination. The court must be satisfied that the said declaration is true and voluntary. It appears to this Court that PW12 being a doctor of Purulia Sadar Hospital is totally a non-interested witness and at the time of recording the dying declaration he was the best judge to assess the physical condition and mental stability of his patient to give such dying declaration and on being satisfied he recorded such dying declaration in the manner indicated hereinabove. On overall assessment of the evidence of PW12 and Exhibit 3/1 it thus never appears to this Court that the dying declaration as recorded by PW12 raised any suspicion and/or it suffers from any infirmity. 30. In view of such this Court finds no reason to discard the evidence of PW12 as well as the veracity of the dying declaration as given by the deceased. 31. On careful scrutiny of the evidence of PW1, PW3, PW6 and PW12 as well as the dying declaration of the deceased it appears to this Court that their evidence are consistent and coherent and there cannot be any iota of doubt to disbelieve such testimonies of the aforementioned PWs. 32. On perusal of the oral testimonies of the PW1 and PW3 it appears to this Court that on the relevant day and hour the appellant snatched the spear from Surgeon Gope and gave a piercing blow on the left side of his chest which clearly indicates the sole intention of the appellant was to cause death of the deceased or to cause such bodily injury likely to cause death. 33. In view of the aforementioned discussion, the instant appeal fails and is hereby dismissed with all connected applications. 34. Consequently, the judgement of conviction and order of sentence both dated 21.05.1985 as passed by the learned Sessions Judge, Purulia in Sessions Trial No.13 of 1985 arising out of Sessions Case no. 47 of 1984 is hereby upheld. 35. It is reported that the appellant was taken into custody on 29.05.2024 pursuant to the order dated 23.02.2024 as passed in this appeal by a Co-ordinate Bench of this Court. 36. In view of such, it is directed that the present appellant shall have to suffer remainder part of his sentence as passed in connection with Sessions trial no.13 of 1985 by the learned trial judge. 37. In the event if the present appellant, Mantu Gope is at large, the appellant Mantu Gope is directed to surrender before the learned trial court within a fortnight from today failing which learned trial judge shall take appropriate steps for taking custody of the present appellant Mantu Gope for serving the remainder part of his sentence as awarded by the said Court. 38. Department is directed to forward a copy of this judgement to the learned trial court along with the LCR forthwith. 39. Urgent Photostat certified copy of this judgement, if applied for, be given to the parties on completion of usual formalities.