62 recorded by the Investigating Officer in the hospital in presence of a doctor.
In the dying declaration, however, the version of the incident as given out by the deceased was that at the material time two persons were present, one of whom was a Madrasi and the other from Bihar, and of them the Madrasi took out a knife wrapped in paper and delivered a blow with it upon him the deceased .
In other words, while PW 3 claimed that the appellant, who is a Bihari, was the assailant, the deceased described the assailant as a Madrasi, without naming him.
When the above material discrepancy regarding the assailant was brought to the numberice of the trial companyrt, it observed as under It is true that in the dying declaration Ex.
The appellant and seven others were placed on trial before an Additional Sessions Judge of Chandrapur on the allegations that on 2 1 1990 at or about 8.00 a.m. they companymitted rioting on Chandrapur Tadoba Road and, in companyrse thereof, the murder of Alakh Niranjan.
As the appeal preferred by the appellant in the High Court proved abortive he has filed the instant appeal after obtaining special leave.
To bring home the charges leveled against the appellant and, for that matter, the other accused persons, the prosecution rested its case upon the testimonies of, besides the doctor who held the post mortem examination and other formal witnesses, Brijendra Pande PW 3 , brother of the deceased, who gave an ocular version of the incident and upon the dying declaration of Alakh Niranjan Ex.
In describing the role played by the appellant, PW 3 specifically stated that he gave two knife blows on the left side of the chest of Alakh Niranjan which resulted in his death.
On companyclusion of the trial the learned Judge companyvicted the appellant under Section 302 IPC simpliciter , while acquitting the other seven.
