JUDGMENT [ENTITY], J.
1. Heard the learned, counsel for both sides.
2. The two appellants before us [ENTITY] and [ENTITY] were tried for the offence Under [SECTION] [ACT] by the Sessions Judge, Cachar, Silchar in [CASE NUMBER]) and they were sentenced to imprisonment for seven years and to pay a fine of Rs. 2,000 in default, further imprisonment for two months.
3. The prosecution case in brief is that on 8.9.1993 at about 9.30 PM while [ENTITY] was returning, home, the two accused persons caught hold of him in front of the river Rukni and assaulted him with dagger as a result of which the said [ENTITY] sustained serious injuries and he was removed to Hospital, where he succumbed to the injuries.
4. PW 1 Dr. [ENTITY] held the autopsy over the dead body and found the following injuries on the person of the deceased :
"Injuries :
(1) Cut injury on the right shoulder blade 7cm medial to shoulder tip measuring 3 x 1/4 x 1/4 cm with pus formation. (2) Abrasion with scab formation (brown) along the lateral end of right clavicle measuring 3 x 1/4. (3) Abrasion with scab formation (brown) on the right side of forehead 2 x 1/4cm. (4) Cut injury on the right wrist laterally measuring 2 x 1/2 x 1/2 cm with inflammatory changes. (5) Lacerated injury 3 cm above the injury No. 4 measuring 1 x 1/2 x Vkm. (6) Abrasion on the left forearm in mid half mid ventral aspect measuring 1 x 1/2cm with brown scab. (7) Penetrating wound on the left side of the abdominal wall along the mid auxiliary line and in mid half measuring 3 1/2 x 1/2 cm x abdominal cavity deep. Inflammatory changes present along with the margins and the margins were regular.
Thorax :
Walls, ribs and cartilages, larynx and trachea, pericardium, heart and vessels- all healthy.
Lungs- congested.
Cranium, spinal canal :
Brain congested. All other organs healthy.
Muscles, bones and joints :
Muscle injury as described above. Others are healthy.
[ENTITY] :
Walls- injury as described.
Peritoneum :
Surgical stitches present.
Large intestines - stitches present in masentry.
Anasthomosis stitches present on the transverse and descending column. Lever, spleen, kidneys- congested. Others healthy.
All the above injuries were ante mortem and about 4/7 days old. Injury Nos. 2, 3, 5 and 6 were caused by blunt object and injury Nos. 1, 4 and 7 were caused by sharp weapons." In the opinion of the doctor, the death was due to shock as a result of secondary infection from the ante mortem injuries sustained homicidal in nature.
5. The medical evidence in this case, has not been challenged except the simple question to which the doctor has stated that if immediate proper treatment would have been given to the injured, he might have survived. From the evidence of the informant PW 2 [ENTITY], we find that the injured was immediately removed to Dholai Hospital and thereafter he was shifted to Silchar Medical College Hospital and the deceased died after three days at the Silchar Medical College Hospital. Thus, this is not a case where the injured was not given medical treatment. The death of the deceased as a result of the injury sustained is thus well established.
6. In this case, there is one eye witness Mst. [ENTITY] (PW 3), wife of the deceased she has deposed that on the day of occurrence her husband went towards Manipuri gaon situated on the other side of the river Rukni and hence she was waiting for her husband sitting in the varandah of the house with a lamp burning. Suddenly she heard some scream for help from her husband and came to the river bank and she saw that accused [ENTITY] was holding her husband in the water and accused [ENTITY] was giving dagger blow on her husband. When she raised alarm the accused persons fled away. She somehow brought her husband to the bank of the river and in the meantime some other persons including the brother-in-law PW 1 arrived and they removed her husband to the Hospital where he succumbed to the injuries. The evidence of this eye witness has not been seriously challenged except giving 2/3 suggestions. The only omission that has been brought out is that in her statement Under [SECTION] [ACT] the witness did not state that dagger blow was given while the deceased was still in the water. The incident took place in the river Rukni and whether the accused was in the water or outside water was not material to discard the testimony of this witness.
7. Besides the evidence of the eye witness, there is dying declaration of the deceased made before PW 2 and other villagers who came to the place occurrence on hearing shout for help. PW 2 has deposed that on being asked the injured told him that he has been assaulted by the two accused appellants. The injured remained alive for three days since the date of incident. The law is well settled that such oral dying declaration can be relied on. It is, however, submitted that the deceased was in a proper mental and physical condition to make the dying declaration. In the case of [PRECEDENT] the Apex Court held that certificate from the doctor in the matter of dying declaration is not a must. In the instant case, the defence by cross examining PW 1, the doctor, has brought out that if proper medical treatment would have been given, the deceased could have survived. This goes to show that the injury was not such that the deceased could not make any statement soon after the incident.
8. The law regarding basing conviction on the basis of oral dying declaration was considered by the Apex Court in a recent decision in the case of [PRECEDENT] and it was reiterated in the case of [PRECEDENT] wherein the Apex Court observed :
"One of the latest pronouncement of this Court pertaining to the subject find place in the decision of [PRECEDENT]] wherein, this Court observed that apart from the care and caution factors as noticed earlier the dying declaration ought otherwise to be treated as trustworthy. The issue thus becomes as to whether the dying declaration has been able to bring about a confidence thereon or not is it trustworthy or it is a mere attempt to cover up the latches of investigation; it must allure to the satisfaction of the Court that reliance ought to be placed thereon rather than a distrust. The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelieve or distrust would not arise. In the event, however, of there being some infirmity, howsoever, negligible it be, the Court unless; otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however, it is otherwise, question of requirement of a corroboration would not arise ; dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect wording and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision the declarant should be able to recollect the situation resulting in the available state of affairs."
9. In this case, we find that there is a testimony of the eye witness which stands corroborated by oral dying declaration on record. It is also corroborated by the medical evidence. In spite of the number of injuries sustained by the deceased, the trial court gave the benefit to the accused persons and the conviction was entered into Under [SECTION] [ACT].
10. In view of the tell tale materials available on record, we find no case for interference. There is no merit in this appeal and the appeal is accordingly dismissed.