K.N. Saikia, J.
1. This criminal jail appeal is from 'he judgment and order of conviction Under Section 302 IP. C. and sentence of imprisonment for life.
2. On 7-6-1976 at about 12.30 A. M. one P. Ibomcha Singh, P.W. 2, lodged anejahar at the Lamphol Police Station alleging that on 6-6-76 at about 9.30 P. M. while he and his friend, Laishram Ibomcha Singh were coming home by the road in between Ahallup village and Don Bosco High School, the appellant, Shri1 Waikhom Angamba Singh and one W. Nandakishore Singh (acquitted) came from behind on one bicycle and all of a sudden the appellant assaulted Laishram Ibomcha Singh with one khukri as a result of which he fell down on the road and the informant, P. Ibomcha Singh, ran across a paddy field towards the house of Laishram Ibomcha Singh and informed the members of his family, who came to the spot and found Laishram Ibomcha Singh lying with multiple injuries and when asked he (Laishram) replied that the appellant, Waikhom Angamba Singh, assaulted him; and therefrom he was taken to The hospital but succumbed to his injuries on way. Lamphol police registered F. I. R. Case No. 168(6) 76, investigated the case, arrested the accused-appellant as well as W. Nandakishore Singh on 14-6-76, and a statement of the accused led to the discovery of the alleged weapon of offence, clothes worn by the appellant and the bicycle, and thereafter the appellant and his co-accused, Nandakishore Singh were charge-sheeted. At the trial Court charge Under Section 302 read with Section 34 IPC was framed against both/ which they denied and alleged false implication. At the end of the trial, while the appellant was convicted under Sec tion 302 I. PC. and sentence to imprisonment for life, the other co-assused. Nandakishore Singh, was acquitted of the charge, giving him the benefit of doubt. Hence this appeal.
3. The learned trial Court mainly relied on the evidence of P.W. 2 who claimed to be the sole eye-witness of the occurrence, a dying declaration of the deceased made before P. Ws. 1, 2 and 4, and the statement Under Section 27 of the Evidence Act giving information leading to the discovery of the khukri, clothes worn by the appellant and the bicycle ridden by the two accused persons.
4. Mr. A. Nilamani Singh, the learned Counsel for the appellant, submits that the sole eye-witness, P.W. 2, is not so reliable as to base conviction Under Section 302 I. P. C; that the dying declaration was not admissible as it was not proved according to law; that the statement leading to the discovery was not recorded and discovery was not made according to the law; and that the evidence of the P. Ws. is materially discrepant and lastly that the offence Under Section 302 IPC was not proved according to the law.
5. The learned Public Prosecutor, on the other hand, submits that the evidence of P.W. 2 is clinching inasmuch as he saw 'he appeallant giving khukri blow on the deceased seeing which he ran towards the house of the deceased crossing the field and informed L. Shamu Singh (Laisram Samungou Singh, P.W. 1, and others who immediately rushed to the spot, found the deceased lying with multiple injuries, and before the P. Ws. a dying declaration was made. He submits that P.W. 2 saw only one khukri blow being dealt and the other injuries, as found in the post-mortem report, must have been inflicted by the appellant after P.W. 2 ran towards the house of deceased and before they returned to the spot. He further submits that the night being a moonlit one and the appellant, the deceased and P.W. 2 being school friends, there was no uncertainty as to the identification.
6. The sole eye-witness, P.W. 2, is also the first informant and the F. I. R. is elaborate. P.W. 2 deposes that he knew the two accused persons since his boy-hood. The appellant was his class mate in the Heingang High School from Class VIII to X. So was deceased Laishram Ibomcha Singh. On the morning of the date of occurrence he was informed by his cousin, Gopalmacha Singh, that he was wanted by the deceased Ibomcha Singh and accordingly at about 8 A. M. the witness came and met the deceased who asked him to accompany to Leimapokpam village near Nambol to which the deceased was invited to dine. Accordingly the deceased and the witness left the deceased's house at about 9-30 A. M. on his bicycle, reached that village, finished their meal at about 2 P. M. and left that village at about 6 PM. on the cycle, but when they reached the power house at Keisampat the rear wheel of the cycle got punctured for which they had to proceed thereafter on foot via Shangakpham bazar near Don Bosco, There was bright moon light and they were proceeding from the said bazar towards Ahallup Village, the witness pushing the bicycle on the left side of road and Laisram Ibomcha walking along his right about the middle of the road. All of a sudden two persons came from behind them on a bicycle, one sitting on the rear carrier. When the witness looked at them he saw that the person sitting on the carrier was the accused-appellant, Angamba Singh and the cyclist was the accused Nandakishore Singh. No sooner than they were so seen by the witness, the appellant got down from the carrier and immediately dealt a blow with a khukri, about one cubic in length, on the head of Laish-ram Ibomcha Singh at which the latter shouted 'Ho Ima Sire' (0 mother I am dying) and ran towards the field on the western side of the road. The witness also threw down 'he bicycle and rushed towards the same field to his left. As the spot was encircled by open field up to a distance of two furlongs, he did not raise any alarm and ran for his life without looking to his companion, Laishram Ibomcha Singh, and at once stretch he managed to reach the latter's house and gave the information to L. Shamu Singh, P.W. 1, latter's brother waking him up from sleep. Shamu Singh immediately called out some of his brothers from the neighbourhood, but without waiting for anybody to turn up, rushed towards the road followed by the witness, Chandra Singh, father of Shamu Singh, one Khomei Singh and another Kh. Shamu Singh (P.W. 4). L. Shamu Singh (P.W. 1, as indicated by the witness, was the first to reach the spot where the injured was lying. Khomei Singh and Chandra Singh also reached soon thereafter when they found Laishram Ibomcha Singh lying with his head on the lap of his brother L. Shamu Singh. When Shamu Singh asked Laishram Ibomcha Singh as to who had assaulted him the latter replied that he was assaulted by the accused-appellant Waikhom Angamba Singh with a khukri and that W. Nandakishore Singh also accompanied him. Laishram Ibomcha Singh was fully conscious at that time, not groaning but more or less in a composed mood. L. Shamu Singh gave first aid by tying up the injured portion with pieces of Khudei (Manipuri towel) taken from their father, Chandra Singh. Kh. Shamu Singh (P.W. 4) who also arrived there was asked to fetch a vehicle for taking the injured to the hospital and he picked up the tyre punctured cycle which was thrown away by the witness and went riding it to bring the vehicle. After about half an hour of their arrival the injured was lifted from the field to the road. When they were so waiting for the vehicle Laishram Ibomcha Singh asked the witness to tear out his (Ibomcha Singh's) ganji as he was feeling uncomfortable and the witness tore the ganji into pieces. The injured also asked for some water but as those present there objected, the witness did not give him water. After about one hour Kh. Shamu Singh having left, a jeep came to the spot with Kh. Shamu Singh, one Asangbam Iboyaima Singh and the driver Biseswar Singh. The injured was lifted to the jeep, but as it had no fuel it could not be started and had to be pushed up to the B. O.C. point near Sangakpham bazar, 'which took about 20 minutes. After taking fuel when the jeep was about to start, L. Shamu Singh, the elder brother of the deceased told all that his brother, Laishram Ibomcha Singh had expired. But as he insisted all they took the injured up to the Casualty Department of the General Hospital at Lampholpet where the Medical Officer, Casualty Department declared him dead. It was only then they decided that the matter be reported to police for which the witness, L. Shamu Singh, the elder brother of the deceased and the driver Biseswar Singh went in that very jeep to the Lamphol Police Station where the witness gave an oral report to the Officer-in-charge who reduced the same into writing and on being read over and found correct the witness put his signature on it. Ext- P-2 is the said P. I. R. The police came to hospital, held inquest and challaned the dead body for autopsy which was done by Dr. N. Thaniljao Singh (P.W. 6) on 7-6-76 at about 2 P. M. at the morgue of the General Hospital at Lamphelpat. In cross-examination the witness says that when they were passing through the bazar at about 9 P. M. the moon light was visible before they reached Keisam-pat. It was the 9th day of the waxing moon. The nearest inhabited place from the place of occurrence would be about two furlongs away. They came to know about coming of the appellant and Nandakishore only when they reached their side seeing them only when they were within one fathom. Appellant Angamba got down from the cycle first when Nandakishore stopped his cycle extending his foot. There was no exchange of words between the appellant and the deceased. The witness saw a dao in Angamba's hand only when he got down from the cycle. The first blow fell on the right side of deceased's head. Both the witness and the deceased fled in the same direction but the witness did not mark how far the deceased fled away from the place of occurrence. He also did not see what Nandakishore Singh was doing when he so ran from the place of occurrence. L. Shamu Singh, after being informed, was rushing to the place of the deceased about 30 feet ahead of the rest who did not have any talk among themselves about the incident while following Shamu Singh. The deceased was found lying about 30 feet away from 'he place of assault and he (the deceased) talked with L. Shamu Singh for about ten minutes. After about 5 minutes of their arrival including the witness, Shamu Singh asked the deceased as to who has assaulted him. The cycle was found lying within one fathom from the place of occurrence. They found a marketing gunny bag containing chips at a place about 2 fathoms away from the place of occurrence. The place where the deceased was kept on the road was stained with blood. But the witness could not say whether the place of assault was also smeared with blood. At the time of occurrence . the appellant was putting on a long pant and a blackish shirt, while Nandakishore Singh was wearing an ash coloured long pant and a whitish shirt. The sudden jumping down of the appellant attracted their attention towards the appellant who was acquainted with the witness who had no time to talk to them before the appellant made the assault. Police look about half an hour of reduce his oral report into writing which he made at about l P. M. that night. The witness denied the suggestion that the deceased did not make any dying declaration to his elder brother, L. Shamu Singh, or thai he falsely implicated the appellant as instructed by the brother and father of the deceased.
7. P.W. 1, L Shamu Singh (Laisram Samungou Singh) corroborates P.W. 2 He wag woken up from sleep by P- W. 2 at about lo P. M. calling him as 'Ta Samu, Ta Samu' and P.W. 2 told him that his younger brother, Ibomcha, was lying injured as a result of the assault by a dao on the way from Sangakpham bazar towards their village. Learning that he at once came out of his house, called Khomei Singh and Tomchou Singh, his relatives and without waiting for them at once rushed towards the spot and after reaching the place knowns Heikrumakhong called Ibomcha and asked him where the place was and being directed by the latter he proceeded further and running a little distance again called his injured brother who responded to him from a place inside the field lying towards western side of the road and as the night was moonlit he found him lying in the field with cut injuries on his head, and left thigh. His right wrist was also almost cut through except some portion of the skin and was bleeding profusely. He put the injured's head on his thigh and asked him as to who had assaulted to which Laishram Ibomcha Singh replied that he was assaulted by appellant, Waikhom Angamba Singh and that W. Nandakishore Singh also joined him. At that time the injured was in a fully conscious state. P. Ibomcha Singh (P.W. 2, Khaidem Samu Singh (P- W. 4) and his father Chandra Singh also heard the said talk between the witness and the injured, Laishram Ibomcha Singh. The witness took a piece of Manipuri Khudei (towel) from his father and after tearing it out he tried to bind the injured portions of his brother and sent Kh. Shamu Singh (P.W. 4) to fetch a vehicle. P.W. 4 picked up a cycle with punctured rear wheel as his father insisted on Kh. Shamu Singh's riding the cycle somehow. Rest of his evidence corroborates P.W. 2. In cross-examination he said — 'On my enquiry as to the assailant of my younger brother Ibomcha Singh told me that Angamba Singh and Nandakishor Singh were the assailants. For the first lime I called my deceased brother from a distance of 40 ft. from him. I could see him also from that distance. As soon as I placed him on my thigh I asked him as to the assailants. After I had placed h*m on my thigh the other persons arrive there. Immediately after their arrival he said declaration was made by my younger brother on my asking. I held talk with him for about 14/15 minutes. He also during that period could identify the other persons who came there. Not. only I but also Pangam-bam Ibomcha put questions to him as to his assailant. On that day my brother could speak for about half an hour but thereafter he could speak no more'. In cross-examination this witness further stated that the fact of his making enquiry as to the assailant of his brother was reported before the police but the Investigating Officer omitted t0 record that part of the statement. He did not admit that his younger brother was totally unconscious when he found the latter or that the two accused persons had been falsely implicated in collusion with P.W. 2. To Court he said that P.W. 2 put some questions to the injured Ibomcha Singh as to who assaulted him.
8. P.W. 4, Khaidem Shamu Singh, corroborates lhat hearing the noise in the house of Laishram Shamu Singh (P.W. 1) as 'Mi Hatnare' etc. (Men are killing each other) he rushed towards his gate where he met P.W. 2 who on enquiry told the witness that Laishram Ibomcha Singh was lying injured somewhere on the road and the witness also followed him in the direction he was running and when he reached the spot he found L. Shamu Singh (P- W. 1) there asking his injured brother as to who were the assailants at which the injured said that Angamba Singh and TJandakishor Singh were the assailants. The statement was made within his hearing as well as of Pangambam Ibomcha Singh (P.W. JO who was then standing near him. The night was moonlit so that he could see persons within a distance of about 20 feet. He was asked by 'Chandra Singh, the father of the deceased to fetch a vehicle and accordingly he brought Biseswar's jeep into which the injured was lifted and the jeep was pushed to the B. O.C. point where Laishram Ibomcha expired. The rest of his evidence corroborates P. Ws. l and 2 in material particulars.
9. P.W. 10, the Officer-in-Charge, Lamphel Police Station being called from his house reached Lamphel Police Station at about 2 A. M. of the night between 6-6-76 and 7-6-70-and learnt that there was already a report made to S. I., Hangsing, in his absence, and he drew up F. I. R. Case No. 168(6) 76 and already proceeded to the General Hospital Lamphelpat. This witness also followed him to the General Hospital and himself took up investigation of the case, proceeded to' the place of occurrence, arrived there at about 3 A. M.; found a gunny bag lying on the road containing four stones approximately having 4' diameter each, some pieces of hair falling on the road near the gunny bag and some pieces of ganji were also found at the eastern margin of the said road. He also found blood coagulating on earth at a place in the western field at about 15 or 20 feet away from the road. The witness seized the aforesaid articles including the lump of blood-stained earth and prepared seizure memo. Thereafter he proceeded towards the house of the accused-appellant Angamba and Nandakishore Singh at Heingang village but did not find the accused in their houses. The witness then again visited the place of occurence, prepared a sketch map, and examined some witnesses. He raised the houses of the accused persons number of times but did not find them until on 14-6-76 when they were arrested. Appellant, Angamba made a statement which was recorded Under Section 27 of the Evidence Act, at about n A. M. on 14-6-76 wherein the accused stated that he kept a khukri concealed near the gate of Waikhom Munal Singh inside the bush and that the cycle was also kept in the house of the same Munal Singh, who was his elder brother. The statement, Ext. p-14, was signed by the appellant in presence of witnesses. Pursuant to the statement the O.C. arrived at the village with the appellant who brought out those articles from the places stated by him. The witness did not find any bloodstain in the long pant which appeared to be recently washed. He found reddish stains on the khukri brought out. He took several photographs of the places where-from the articles were brought out. In cross-examination he said that he started from the Police Station at 1-50 P. M. and returned to the Police Station at 5 P. M. and that the villagers gathered at the places where seizures were made. On his transfer the witness handed over the charge of the case to P.W. 11 who submitted the charge-sheet, Ext. P-20.
10. P.W. 6, Dr. N. Thaninjao Singh, performed the autopsy on the dead body of the deceased on 7-6-76 at about 2 P-M. at the morgue of the General Hospital, Lamphelpat and found the following injuries:
(1) The dead body was that of staul young male person.
(2) One incised wound measuring 12' x 4' x 2 1/4'on the left thigh with profuse bleeding. This wound was directed obliquely from lateral to medial side on the left thigh. The skin, subcutaneous tissues, muscles were all cut through, with bleeding from femoral artery.
(3) One incised wound on the left hand on the dorsum at the roots of the middle and ring fingers having a size of 1' 1' 1 x 1 •
(4) One incised wound at the occipital region of the head. This wound was parabolic in outline with the size of 4' x 3 1/2' at 2 points of its longest diameters, reflecting out a portion of the tissues in-eluding the muscle from above downwards. This was not accompanied with the fracture of the skull.
(5) Another incised wound on the back of left shoulder with a size of 2 1/2' x 1/2' x 108'. The skin sub-cutaneous tissue and muscles were all cut through with bleeding.
(6) A total through and through cut at the lower end of the right fore-arm 2' above the wrist joint. The whole thickness including the radius and ulna were cut through except the portion of skin on the dorsal surface.
(7) The cut portion was found loosely hanging by the said skin portion.
(8) One incised wound at the root of the right thumb having a size 1' x 1/2' on its inner aspect involving inter-digital space between the thumb and index finger.
(9) One incised wound on the medial aspect of the right index finger having a size 1' x 1/4'.
After opening the body the Doctor found the other internal organs to be normal. He also found the following internal injuries:
(1) The muscles on the occipital region injured and cut,
(2) The muscles on the right forearm all cut transversely.
(3) All muscles of the left thumb cut longitudinally.
(4) Muscles on the left shoulder are cut.
11. In the opinion of the Doctor all the wounds were ante mortem in nature and the patient died due to haemorrhage and shock and that the death might have been within 24 hours before autopsy. The injuries were homicidal in nature and might have been caused by a sharp cutting weapon like Ext, M/O-12, the khukri. The internal injuries mentioned by him correspond to the external injuries. The cumulative effect of the said injuries would be sufficient to cause the death of the person, but singly taken the injury on the right hand cutting the skin, muscles and bones such as radious and ulna were also sufficient to cause death if the same was left uncared for, for a sufficiently long time resulting thereby in an excess of bleeding. He further opined that Injuries Nos. 1 and 2 might have been caused when the assailant and the victim were in standing position to each other. According to him, the injuries Nos. 3 and 4 might be caused when the assailant gave the blow from behind the victim in standing or running position; Injury No. 5 might be caused when the assailant was in front of the victim when giving the blow and Injuries Nos. 6 and 7 might have been caused while trying to ward off a blow given to the victim from his front when the victim was in lying or standing position. In his opinion the injured might be surviving for a little more than one hour after the injuries, during which period he would not lose consciousness. The Doctor was cross-examined as to the size of the injuries and plunging of the weapons and as to the age and colour of the injuries and as to whether he would suffer instantaneous death.
12. The death of Laishram Ibomcha Singh is not in dispute. The injuries found on his person also have not been disputed. The only question in this appeal, therefore, is whether the appellant himself caused the death by inflicting those injuries. The State has not appealed against acquittal of W. Nandakishore Singh.
13. The learned trial Court besides while relying on the evidence of P. Ws. 1, 2 and 4 believed the dying declaration said to have been made before them. Counsel for the appellant submits that the contents of the dying declaration must be held to be uncertain inasmuch as excepting the names further particulars of the accused persons, such as, fathers' names, addresses etc. were not given. The contents may be gathered from the evidence of P.W. 1 who in his cross-examination said: 'When Shamu Singh asked his brother Ibomcha Singh as to who had assaulted him the deceased Ibomcha Singh replied that he was assaulted by accused Angamba Singh with a khukri and accused Nandakishore Singh also accompanied him.' P.W. 4 also said: 'At the moment on the asking of Shamu Singh to his injured brother Ibomcha Singh as to who were the assailants the injured stated that Angamba Singh and Nandakishore Singh were the assailants'. In the F. I. R. lodged by P.W. 2 it was stated: 'And the injured Ibomcha Singh told me that the persons who stabbed him were Shri Waikhom Angamba Singh and Waikhom Nandakishore Singh'. From the contents of the dying declaration read with the evidence of other P- Ws. the identity of the accused persons is not in doubt. The witnesses were not cross-examined or suggested that they were other persons with the same names. The dying declaration cannot, therefore, be rejected on this ground. Counsel also submits that there was no mention of the dying declaration in the F.I.R., but this is obviously not correct as we have quoted from the F.I.R. It is further submitted that this dying declaration having not been recorded according to the law, it cannot be acted upon. The submission is not tenable inasmuch as an oral dying declaration, if believed, may also provide the foundation for conviction. The attendant circumstances showing that the occurrence took place at a spot surrounded by open field the nearest habitation being two furlongs away and P.W. 2 having also left the injured alone, the dying declaration cannot be ignored when crucial facts are found in it : 1981CriLJ9 , on the ground that it was not reduced to writing. A dying declaration, if truthful, can itself form the basis of conviction even when there is no corroborative evidence, as was ruled in : 1972CriLJ828 . What is required is that it must be closely scrutinised as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, bearing in mind, on the one hand, that the statement is by a person who has not been examined in court on oath, and on the other hand, that the dying man is normally not likely to implicate innocent persons falsely. A dying declaration, as was observed in Tapinder Singh v. State of Punjab : 1970CriLJ1415 , is a statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant Under Section 32(1) of the Evidence Act, in a case in which the cause of that person's death comes into question. It is true that a dying declaration is not a deposition in court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearing evidence, on the principle of necessity. The above weak points of a dying declaration merely serve to put the Court on its guard while testing its reliability by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. In the instant case we find that the declaration was made at the earliest opportunity almost immediately after 'he injuries were inflicted. There was, in fact, no time for deliberation, concoction or fabrication.
14. In Surajdeo Oza v. Stale of Bihar : 1979CriLJ1122 , the deceased gave a short statement. Though he sustained a large number of injuries, as none of them affected the brain or heart but only abdomen, the deceased was not unconscious immediately. Their Lordships of the Supreme Court held that the deceased having given a short statement, which was a proof of the manner in which the deceased was assaulted, the shortness of the statement itself appeared to be the guarantee of its truth. In the instant case also we find that the statement was short and was given soon after the incident. P.W. 2 said that at the time of making the declaration the deceased, Ibomcha Singh, was fully conscious not groaning and that he was more or less in a composed mood. P.W. 6, Dr. N. Thaninjao Singh, stated: 'So far my opinion goes the patient receiving the aforesaid wounds will not lose unconsciousness during the said time of survival i. e. for about one hour after receiving those injuries'. In cross-examination he reiterated his opinion that the deceased might have remained conscious for about an hour and he denied the suggestion that a person receiving such injuries must suffer instantaneous death.
15. In Jayarai v. State of Tamil Nadu : 1976CriLJ1186 , where the deponent (while making his dying declaration) was in severe bodily pain, and words were scarce, his natural impulse it was observed, would be to tell, without wasting his breath on details, as to who had stabbed him. The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring. The substratum of the dying declaraion was also fully consistent with the ocular account given by the eye witnesses and the Court safely acted upon it.
16. In Kusa v. Stale of Orissa : 1980CriLJ408 it was reiterated that a dying declaration, if found t0 be true, can be acted upon without any corroboration. It was also ruled in Dayaram Singh v. State of M. P. 1981 Cri. L. J. 530 (Madh. Pra.) that a dying declaration when corroborated by testimony of one witness including independent witnesses, cannot be rejected only because of the ability of the injured to make declaration, was not supported by medical evidence. In Habib Usman v. State of Gujarat, 1979 Cri LJ 708: AIR 1979 SC list, it was similarly ruled that grave weight must naturally and necessarily be attached to a dying declaration recorded very shortly after the occurrence. Merely because some friends and relatives happened to be with the deceased before the statement was recorded, the statement cannot be thrown out as tutored. In that case the deceased died at about 9.15 A.M., the occurrence took place at about 8 A. M. and the dying declaration was recorded half an hour before the death. It was observed to be natural for the relatives to be there. In the absence of any proof of tutoring or false implication, their Lordships of the Supreme Court acted upon the dying declaration and set aside the judgment of acquittal passed by the High Court.
17. In Aher Rama Gova v. State of Gujarat, : 1979CriLJ1081 , when the original dying declaration being clearly lost and not available the prosecution was held to be entitled to give secondary evidence of the dying declaration. In Som Nath vState of Haryana AIR 1980 SC 1226: 1980 Cri LJ 925, the three dying declarations corroborated by other circumstances, were held to be sufficient to bring home the offence. Their Lordships observed that they were the groaning utterances of a dying woman in the grip of dreadful agony which cannot be judged by the standards of fullness of particulars which witnesses might give in other situations. To discredit such dying declarations for shortfalls here or there or even in many places was held to be unrealistic, unnatural and unconscionable, if basically there was credibility. Considered in light of antecedent, attendant and posterior circumstances, the brief dying declaration made soon after the incident the injured being fully conscious and composed, in the absence of any evidence of tutoring or false implication in our opinion can safely be acted upon,
18. Counsel for the appellant also attacks the information recorded Under Section 27 of the Evidence Act leading to the discovery of the weapon of offence and 'he bicycle used, and the clothes worn by 'he appellant while committing the offence on the ground that there was no such information recorded according to law. Exl. P-14 is an English rendering of the statement of the appellant. Waikhom Angamba Singh, dated 15-6-76. The relevant portion reads:
I concealed the khukri (with which I gave blows to Laishram Ibomcha) near the foot of a bush of 'Leipung Khanga' which was growing near the gale of entrance of my elder brother Shri Wai-khom Munal Singh. And the bicycle (which I used on the day of occurrence) had also been left over to the house of my elder brother Munal Singh. And the trouser (I wore on the day of occurrence) was being concealed in the almirah of our family.
19. From this statement the informations contained within the bracketed portions may not be admissible as those facts cannot be said to have been discovered in consequence of the information. As regards the discovery of the khukri, the bicycle, and the trouser there appears to be no reason why it should not be covered by Section 27 of the Evidence Act. The information is sufficient to prove that the appellant concealed the khukri, the bicycle and the pant. There is clearly a statement leading t0 the discovery of those articles and it is not a case of mere confession and discovery without there being any statement leading to the discovery. The decision in Bahadul v. State of Orissa AIR 1979 SC 1962: 1979 Cri LJ 1075 relied on for the appellant is clearly distinguishable in that case there was no statement but the accused only made a confession and brought out the 'Tangia' from beneath his cot, a place accessable to others as well, and the factum of recovery was held to be barred Under Section 27 of the Evidence Act. In our instant case, as deposed by P.W. 10, the accused was arrested on 14-6-76 and the statement (Ext. p-14) was recorded by him same day at 11 A. M. and the contents read over to him which he signed. After recording the statement the accused was taken to the places and the articles recovered. The party started from the Police Station at 1-50 P. M. and returned at 5 p. M. Counsel disputes the time when P.W. 11, Kh. Kullo Singh, signed the statement as witness. In our opinion the minor discrepancy as to time in the deposition is not material. Considering the evidence as whole we are inclined to act upon 'he information leading to the discovery of the aforesaid articles. While doing so we are not oblivious of what their Lordships of the Supreme Court laid down in Babboo v. State of M. P. AIR 1979 SC 1042: 1979 Cri LJ 708 about the probative value of such discoveries in consequence of information received. There the 'Katarna' was recovered from accused No. l under seizure memo in which it was recited that accused No. l made a statement that he would show the 'katarna' with which he assaulted the deceased. Their Lordships held that the first part in the seizure memo would be inadmissible because the fact that the accused No. 1 assaulted the deceased was not discovered in pursuance of the information given by the accused No, 1, It would be a confessional statement to police officer hit by Section 27 of the Evidence Act, which says that no confession made to a police officer shall be proved as against a person accused of any offence. Accordingly we omit the bracketed portion in our present statement. Even so, we find that there is indication of authorship of concealment of these articles by the appellant. In Pohalya Motya Valvi v. State of Maharashtra, : 1979CriLJ1310 , it was observed that such a statement may be capable of two interpretations i. e. (i) that he was the person who concealed the weapon, or (ii) that he had the knowledge of the place where it was hidden, and the accused could not be convicted for murder on the basis of such information. The recovery of murder weapon becomes incriminating not because of its recovery at (he instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the appellant who gives information leading to its discovery was the person who concealed it. But where two accused are charged for murder and the information given by. one leading to the discovery of murder weapon is capable of two constructions the one beneficial to the accused will have to be adopted.
20. While being inclined to rely on the discovery we bear in mind the distinction between 'I have kept' and 'it has been kept', in our instant case appellant said — 'I concealed the khukri'.
21. The learned Counsel for the appellant submits that the khukri, the clothes, the bicycle and the hair were not sent to chemical analysis for serological test and, as such, it cannot be held that those were the very articles used at the commission of the offence. It is true that had those been sent for serological test, it would have been easier to arrive at a conclusion. We, however, bear in mind that those articles were stated to have been kept concealed by the appellant and the khukri bore only reddish tinge as distinguished from blood stain. The pant also appeared to have been recently washed. Under such circumstances chemical analysis may not have been helpful. We, are therefore, not inclined to disbelieve that the articles discovered were connected with the crime.
22. Counsel submits that even if P.W. 2 is believed, the dying declaration is acted upon and the articles discovered are also accepted, there still remains a major discrepancy between what P.W. 2 deposed and what was found at the autopsy. P.W. 2 only saw one khukri blow being dealt on the head of the deceased. In Ms own language: 'Accused Angamba Singh when he came to our side got down from the said cycle and rendered a blow by a khukri having a length of about one cubic length on the head of my friend Ibomcha Singh. Immediately on receipt of the said blow the deceased shouted 'Ho Ima Sire' and ran towards the field lying on the western side of the road'. We have set out as many as 9 external and 4 internal injuries corresponding to them, on the body of the deceased.
23. The learned Public Prosecutor submits that the other injuries must have been inflicted by the appellant after the deceased fell down finding him alone after P- W. 2 ran away. Considering the surrounding circumstances, namely, it was night lime, the spot surrounded by open fields the nearest habitation being a tribal village about two furlongs away, it may be permissible to infer that the two accused persons inflicted those injuries. The other accused person having been acquitted and the State having not appealed against his acquittal, it may not be reasonable to hold that all the injuries were inflicted by the appellant alone though in the dying declaration the other accused was stated to have joined the appellant. Under the above circumstances it may be reasonable and safe to convict the appellant only for the head injury caused by him for which there is direct evidence of P.W. 2. P.W. 6, the Doctor, opined that injury No. 4(head injury) might be caused when the assailant gave the blow from behind the victim in standing or running position. He has further opined that the cumulative effect of all the injuries would be sufficient to cause the death but singly taken injury No. 6 was also sufficient to cause the death. Injury No. 4, namely, one incised wound at the occipital region of the head, parabolic in outline with the size of 4' x 34'' at 2 points of its longest diameters, reflecting out a portion of the tissues including the muscle from above downwards, was not accompanied with fracture of the skull. There is also no evidence to show that it would cause permanent disfiguration of the head or that it endangered his life. The injured having died it is not clear whether it would cause the sufferer lo be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. However, I he weapon used was a dangerous instrument for cutting, which, if used as a weapon of offence, was likely to cause death. The appellant, therefore, is liable to be punished for voluntarily causing hurt by dangerous weapon or means Under Section 324 I.P.C.
24. Accordingly the conviction of the appellant is altered to one Under Section 324 I.P.C, and he is sentenced to suffer rigorous imprisonment for 3(three) years. Subject to the above modification, this appeal is dismissed. The appellant is on bail. He is to surrender forthwith to his bail bond to serve out the remaining part of his sentence.
T.C. Das, J.
25. I agree.