High Court · 2012

During trial the prosecution examined as many as eight witnesses while the defence examined three witnesses. The appellants were examined under Section 313 CrPC and on conclusion of trial the learned Sessions Judge acquitted the accused appellants of all the charges by his judgment and order dated 28.5. 2003. The said order of acquittal was challenged by the informant ( PW 1) Samsu l Haque by filing Crl. Revision Petn. No. 541 of 2003 and this court, disposing the said revision petition vide order dated 9.6.2006, set aside the order of acq uittal and remanded the matter to the trial court for taking a decision afresh a fter hearing both the parties. Thus, the learned Sessions Judge, heard the matte r afresh and passed the order of conviction and sentence against the appellants which is now under challenge in this appeal. We have heard Mr. HRA Chouhdury, learned Sr. counsel for the app 4. ellants and Mr. K.A. Mazumdar, learned Addl. P.P., Assam for the respondent Stat e. Advancing the arguments for the appellants, Mr. Choudhury, learn 5. ed Sr. counsel tried to persuade this court with the following submissions : -- i) the ingredients of offence under 364/34 IPC and Section 302/34 IPC could not been proved by the prosecution by adducing cogent and reliable evidence and as such the conviction and sentence is not sustainable in law. ii) the prosecution completely depended on the evidence of related/hearsay/parti san witnesses which are found inconsistent and self-contradictory on the basis o f which learned trial court should not have awarded the conviction and sentence against the appellants. iii) admittedly there being no eye witness on the actual act of assault on the d eceased and the entire case being based on circumstantial evidence, the learned trial court should not have drawn any inference of guilt against the appellants in violation of basic principle that the circumstances relied upon should be of a definite tendency unerringly pointing towards the guilt of the accused and tha t the circumstances taken cumulatively should form a chain so complete that ther e is no scope from the conclusion that within all human probability the crime wa s committed by the appellants and they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with th eir innocence. iv) the learned trial court committed gross illegality in relying upon the oral dying declaration allegedly made by the deceased before the prosecution witnesse s without testing the veracity and legality of the dying declaration and also wi thout examining its reliability and acceptability for passing an order of convic tion.

6. In regard to dying declaration, Mr. Choudhury, learned Senior co unsel for the appellants, submits that dying declaration has to be trustworthy a nd free from every blemish and inspire confidence apart from reproduction of the exact words of the oral declaration and if there is difference in the exact wor ds of the declaration it would detract from the oral dying declaration. He has p ointed out to what the witnesses have stated. For example PW 1 stated that Nurul screamed (cid:28) Karim bhai mok bochaoa (cid:29) whereas PW 2 stated that Nurul cried saying (cid:28) Karim bhai mok mariley, bachowa. (cid:29) PWs 4 and 5 did say nothing about the scream ing or cry for help by Nurul. Again PW 6 stated that she could hear her husband’ s cry saying (cid:28)Bhai moi morilo. (cid:29) According to PW 7, she heard shouting of Nurul - I have been assaulted. Pointing out to the above variations in the statements o f the above witnesses, the learned senior counsel, submits that in the instant c ase the oral declaration is not as per the requirement of law laid down in Darsh ana Devi - VS- State of Punjab; reported in 1995 Supp.(4) SCC 126. For the same purpose he has also relied on K. Ramachandra Reddy-VS- Public Prosecutor; (1976 ) 3 SCC 618, Subhash -VS- State of Haryana; (2011) 2 SCC 715 and Bhajju @ Karan Singh-VS- State of Madhya Pradesh; (2012) 4 SCC 327. It is submitted that the prosecution failed to examine the indep 7. endent witnesses which were important for the purpose of proving the case. For i nstance in the evidence of PW 1 it is revealed that houses of Khalil, Kazimuddin , Sabaruddin and Nayab are in between the houses of accused Chadequl and decease d Nurul but none of them was examined. In the evidence of PW 4 it was revealed t hat about 30/40 people were present when Nurul was speaking and all of them hear d Nurul making the dying declaration(statement) but none of the neighbours or no ne from the villagers was examined. Similarly PW 5 also stated that at the time of making the statement by Nurul there were 28/30 people but none from amongst t hem was examined. Similarly, PW 6 deposed that at Karim’s house 20/30 people ga thered and amongst them Jakila Khatun, Saleha, Chadequl and his wife were presen t near the injured and the villagers heard Nurul speaking distinctly. But none o f the aforesaid persons were examined by the prosecution. Likewise PW 2 also sta ted in his evidence that Khalilur Rahman, Kazimuddin and Nayab, through whose ho uses the injured ran for safety upto his courtyard, was not examined. PW 2 also stated that injured was taken to the house of Dr. Burhanuddin at Howly, who decl ared Nurul was brought dead. This important medical officer was also not examine d and as a result, nothing could be ascertained what was stated to the doctor by PW 2 and other persons who took the injured Nurul to the doctor.

8. The evidence of the prosecution is that Nurul was capable of ta lking even when he was being taken to hospital in a thela (hand pushcart), but t he said thela puller, Siddique, was not examined. The learned senior counsel for the appellants also pointed out to some more lapses of the prosecution making t he prosecution story unbelievable. For example the prosecution did not examine t he police personnel whom the people taking the injured Nurul to hospital met on the way, and thereby deprived the defence of knowing about the conversation made between the police and the party taking the injured Nurul to hospital. Secondly as per evidence all the accused appellants hit the deceased with dagger, spear (sharp weapons) and iron rod. He submits that had all the seven accused assault ed Nurul by dagger, spear, iron rod etc, he would have received several injuries caused by those weapons but the M.O. found only three injuries caused by sharp weapon which were (cid:28)neither by pointed weapon such as spear nor by blunt weapon such as rod or lathi. (cid:29) Thirdly there is a dubious role of PW 2, Md. Abdul Karim inasmuch as PW 5 deposed that while coming from the Mosque he did not see any p erson making hulla. It was only PW 2 who came raising a hulla stating that Nurul had been assaulted. This piece of evidence of PW 5 is supported by the evidence of PW 6, who stated that Karim came running and shouting telling all that Nurul had been assaulted and Karim found him lying in his courtyard smeared with bloo d. The conduct of Karim(PW 2), according to the learned senior counsel for the a ppellants, is very much doubtful inasmuch as it has been reflected in the eviden ce that both Karim and Nurul wanted to marry Sabida, daughter of Habib and there was a dormant rivalry between them and there was every possibility of causing d eath by Karim to Nurul by inflicting injuries as a measure of taking revenge on Nurul. In fact according to Mr. Choudhury, it was PW 2 who assaulted Nurul and c aused all the injuries mentioned in the post mortem report which was possible to cause by a single person and to save himself he has adduced false evidence by w ay of introducing the story of dying declaration made by Nurul. In any case as s ubmitted by Mr. Choudhury, had all the seven accused appellants attacked in a co ncerted manner, that too when Nurul was inside the house of accused Chadequl, th ere must have been innumerable injuries on his person and by no stretch of imagi nation it could be expected that the accused persons would have allowed him to e scape with some injuries to make statements against them. PW 1 met the policemen while the injured was being taken to Howly dispensary and when the said policem en enquired as to what had happened, they replied that they were taking a patien t. As per the evidence there was no conversation with Dr. Burhanuddin about the alleged occurrence. It is quite unnatural that the person who took the injured N urul would not reveal anything to the doctor or the said doctor would not have m ade any query as to how the deceased sustained the injuries. Moreover, the prose cution, as stated earlier, did not examine the said policemen/party and Dr. Burh anuddin and, as a result, the defence was denied the opportunity of cross examin ing the important witnesses like the policemen and Dr. Burhanuddin to extract th e truth from them. In a case of this nature punishable with life imprisonment th e aforesaid serious lapses on the part of the prosecution must go in favour of t he accused persons and they should be acquitted on benefit of doubt.

9. Countering the aforesaid arguments of the learned counsel for the appellants, Mr. Mazumdar, learned Addl. P.P., Assam, submits that prosecution h as been able to prove the charge against the accused appellants beyond all shade s of reasonable doubts inasmuch as it has adduced independent witnesses apart fr om family members and neighbours who have rendered corroborated evidence on mate rial particulars and also proved the oral dying declaration made at the spot whe re the deceased was lying injured.

10. PW 1 is the star witness in this case. Being the younger brother of deceased Nurul Islam, he lodged the FIR, Ext. 1. He stated in his evidence t hat he lived with the deceased together in the same house. On the date of occurr ence at around 8 P.M. accused appellant No. 1, Chadequl Islam, a co-villager, ca me to their house and called his deceased elder brother Nurul for treatment of a patient in his house. The deceased elder brother accompanied Chadequl to his ho use. Hearing the cry for help, he, along with his family members and other villa gers came out and found Nurul lying in an injured state at the gateway of Abdul Karim(PW 2). He saw stab injuries on the chest, hands and facial region of the d eceased. On being enquired Nurul told them that at the house of accused appellan t No. 1 (Chadequl Islam) all the accused appellants hit him with weapon. In the injured state his brother tried to run away but the accused chased him and he fe ll down on the courtyard of PW 2, Abdul Karim. He was in his senses for about on e hour after the incident and died in the Howly hospital. In cross examination h e stated that his brother Nurul practised (cid:28)kabaraji (cid:29) (herbal medicine). He furth er stated that PW 2, Karim also practised (cid:28)kabiraji (cid:29) and he denied the defence c ounsel’s suggestion that it was not true that Nurul Islam was called to treat Su kur Ali. He also denied the suggestion of the defence that deceased Nurul did no t tell the names of the accused persons who were present at the place where he was lying injured. However, he stated that he had no knowledge if there was any enmity between Chadequl and deceased Nurul. He also denied the suggestion of the defence that he did not tell the police about his coming out upon hearing the s creaming of his brother.

11. PW 2, Abdul Karim is the immediate neighbour of the deceased. He is also an important witness inasmuch as the deceased came running from the hou se of appellant No. 1, Chadequl Islam, and fell down in an injured state on his courtyard. According to his evidence occurrence took in the night time. The inju red came towards his house shouting (cid:28) Karim bhai, mok mariley, bachowa ! (brothe r Karim, I am killed, save me. (cid:29) Having heard the screaming he came out of his h ouse. PW 1 and his family members also came out, he saw Nurul Islam coming in a run and falling down on his courtyard. PW 1, Samsul Haque asked the injured Nuru l to tell who had hit him. In reply he stated that accused Chadequl Islam called him away telling that Sukur master was suffering from fever. While he was exami ning Sukur master all the accused appellants armed with dagger, spear and iron r od came and stood at the door way and when Nurul wanted to flee by the backside of the house, he fell down in the field near Khalilur Rahman’s house and then th e accused pierced him with sharp weapon. The injured Nurul somehow ran through t he courtyard of Karimuddin and Nayab Ali and then reached the house of PW 2. He saw injuries near the left eye, left arm and left side of the chest of Nurul. A short while after Nurul fell unconscious, some people poured water over his head and he was taken in a handcart to Howly for treatment but the doctor told Nurul had already died. On being cross examined he stated that Chadequl’s house is si tuated at about 300 mtrs away from the house of Sukur master. He had no friendsh ip with Nurul and to reach his house (PW 2) one has to pass through the houses o f Khalilur, Sabaruddin, Kalimuddin, Taimuddin, Jallaluddin and Abu Bacha. He fur ther stated that since it was night, Nurul’s dead body was taken home and on the way they met the police. On being questioned, they told the police that they we re taking a patient. On the next day at about 8 P.M. the dead body was taken to the police station. He denied the suggestion that Nurul Islam was his friend and lent him a book on (cid:28)kabiraji’. He also denied the suggestion that while coming out in a run Nurul fell down near Khalilur’s house and he did not tell the polic e that Nurul came in a run through the courtyard of Karim and he had seen injuri es on his person. He also denied the suggestion that Nurul did not tell the name of any accused.

12. PW 3 is the medical officer, Dr. Narayan Das, who performed the post mortem examination over the dead body of Nurul on 20.9.1996. As per his dep osition, he found the wounds position and character as under : - (cid:28) (1) Stab wound present in the mid-axillary line of left axilla at 3rd intercos tal space, size 3 cm x 1 cm x 9 cm. (2) cut injury on the right side of the ventral aspect of the arm. Ssize 3 cm x ‰ cm x ‰ cm. (3) cut injury on the right ear lobule. size 2 cm x 1 cm x 1 cm. Pleurae : Left side of the pleurae teared, and large amount of blood clot presen t. Lung : Punctured at the posterior aspect of upper lobe, blood clot present. In his opinion the cause of death was due to shock and hamorrhage following the injuries sustained. He proved the post mortem report marked as Ext.3 and his sig nature as Ext. 3(1). In cross examination, he clarified that the injuries were c aused by sharp weapon. The first injury was penetrating one and its depth was 9 cm. In his opinion the death took place within 24 hours from the time of post mo rtem examination. He further stated that survival of an injured depends on loss of blood and the person having sustained such kind of injuries may not survive f or a longer time. He also opined that any person having sustained such type of i njury, may fall while on walking or running or he may loose his capacity to talk gradually.

13. PW 5, Nayan Uddin @ Moinuddin and PW 6 Musstt. Anisha Khatun, ar e Nurul’s father and wife respectively. PW 7 Hazera Khatun is the elder sister o f PW 6. She is a divorcee and has been staying with PW 6 for 12 years and she wa s present in house of PW 6. All of them, after hearing the cry of Nurul, rushed to the place where he was lying injured. They were present when Nurul was tellin g how he was attacked by the appellants in the house of Chadequl, escaped and fe ll down at the courtyard of Abdul Karim. The evidence of PWs 5, 6 and 7 corrobor ated each other on material particulars. All of them deposed that Nurul had sens es and he could speak when he was lying injured at the courtyard of Karim’s hous e. As per her evidence, PW 6 (in cross examination) stated that her injured husb and was speaking clearly. So also, as per evidence of PW 7 (in cross examination ) Nurul spoke distinctly. One Md. Azahar Ali, co-villager was examined as PW 4. His house is situated at a distance of 500 mtrs. from Nurul’s house. He also cam e to the place where Nurul was lying injured and present while Nurul was telling that while he was examining Sukur master, the aforesaid accused appellants arme d with dagger and spear stood in front of the house and out of fear when Nurul w anted to go out in a run through the backside of Chadequl’s house, he fell down into deep water and at that moment the accused persons attacked him. Somehow he escaped to the house of PW 2 and fell down at the front courtyard of Karim’s hou se. PW 4 also corroborated the evidence of PW 5, 6 and 7 on material particulars , He, however, stated that he had no knowledge why Nurul was killed.

14. The I.O., Khurshed Ali was examined as PW 8. He deposed how he c onducted the investigation and testified that he seized one blue colour gamocha and a pair of hawai chappal belonging to the deceased from the place of occurren ce vide seizure list Ext. 5 on which his signature appears as Ext. 5(1). But he did not seize lungi and ganji found on the dead body of Nurul. In cross examinat ion he stated that the place of occurrence is situated at a distance of 3/4 kms from Howly police outpost.

15. In the pursuit of proving innocence, accused appellants examined DW 1, DW 2 and DW 3. DW 1 being a kazi during the said period, executed Kabinna ma (marriage agreement) between PW 2 and Sabida Khatun. This piece of evidence l eads nowhere. DW2, Nayab Ali was examined to prove that he rushed to the residen ce of PW 2 and found Nurul lying in an unconscious state and he was not in a pos ition to speak. However, he stated that Nurul was taken to Howly in a thela for treatment but he succumbed to his injuries on his way to doctor. DW 2, Sayed Ali was examined to bring on record that there was a dispute between PW 2 and decea sed Nurul over marriage of Sabida Khatun inasmuch as both of them wanted to marr y her and after the death of Nurul, PW 2 married her. But in cross examination h e stated that the said Sabida was his cousin sister. The evidence of DW 3 also l eads nowhere and carries no evidentiary value inasmuch as his evidence, particul arly in regard to dispute between PW 2 and Nurul over the marriage of Sabida, is not supported or corroborated by any defence witness, not to speak of any prose cution witness.

16. From the evidence of PW 1, apparently, deceased Nurul was seen l ast with convict appellant No. 1 Chadequl when he came to the house of deceased at about 8 P.M on 19.9.1996 asking him to come and see Sukur who was suffering f rom some illness. The defence has not, in any manner, disputed the fact of visit of Chadequl to Nurul’s house and taking him out for treatment of Sukur Ali. Wh at happened thereafter to his brother Nurul is not known to or seen anymore by S amsul Haque (PW 1). He found his brother Nurul lying with injuries on the courty ard of PW 2 at about 11 P.M. As per his evidence the distance between the house of Nurul and Chadequl is only 350 mtrs i.e. within the hearing distance. There w as a gap of about 3 hours. Was Nurul present or staying in the house of accused Chadequl in the said three hours time ? If he was so present, what was he doing for long three hours ? Did Nurul go or pay visit to any other place. Evidence is silent on the said question. There are other disturbing questions. For instance , Sukur for whom accused Chadequl came and took Nurul for treatment is a co-vill ager. There in no evidence as to whether Sukur was really suffering from illness or disease. If he was ill or suffering from some disease, why did he prefer Cha dequl’s house for treatment. Except the evidence of Chadequl, there is no eviden ce of any other witness testifying the fact that Sukur was present or waiting in the house of Chadequl for treatment.

17. The defence, as stated earlier, examined one Nayab Ali as DW 2 t o prove his case. The injured was not in a position to speak at the time when he was found lying in the front courtyard of PW 2. Defence also examined one Sayed Ali to prove its case that both Nurul and Abdul Karim (PW2) wanted to marry a l ady Sabida Khatun. Defence examined yet another witness to prove that as a Kaji at the relevant time, Md. Abdul Wahed, DW 1,executed Kabinnama between PW 2 and Sabida Khatun. No evidence was adduced through those DWs that Sukur was sufferi ng from some ailments or disease and he needed kabiraji treatment and for that purpose Nurul was called by appellant No. 1, Chadequl. Nor has it been sought t o be explained by adducing evidence as to why Sukur, if at all, he was suffering from some illness, was required to be treated in the house of appellant No. 1. There may not be direct evidence of witnesses proving the presence of Sukur in t he house of appellant No. 1, yet from the trend of cross examination of prosecut ion witnesses by the defence, it is quite evident that it had not denied the fac t of presence of Sukur in Chadequl’s house inasmuch as the main witness PW 1 den ied the suggestion of defence stating that (cid:28) it is not true that Nurul Islam had not been called to treat Sukur Ali. (cid:29) So, the clear case of the defence is that Sukur was present in the house of appellant No. 1 on the date and time of occurr ence.

18. Now we proceed to find out whether other co-accused appellants, as alleged by the deceased, were also present in the house of appellant No. 1 an d assaulted the deceased. At the time of calling Nurul in presence of PW 1 in hi s house, the appellant No. 1 did not even make a whisper about the presence of o ther accused appellants, namely Rajab Ali, Jabar Ali, Nurul Islam, Delwar Hussai n and Abdur Rahman. The presence of appellants No. 2 to 7 has been disclosed by Nurul while he made the dying declaration at the injured state. Prosecution case against appellants, particularly, appellants No. 2 to 7 largely depends on the oral dying declaration made by the deceased. The fact of inflicting grievous inj uries on the person of Nurul has been proved by the medical evidence. The nature of injury received by the deceased fits in the nature of weapons used by the as sailants. The fact that Nurul was lying seriously injured has been proved by the evidence of PW 1, 2 and 4 to 7. Amongst those witnesses, PW 1, 5, 6 and 7 are r elated and may be called interested witnesses. They have tendered corroborated e vidence and their evidence is found cogent and trustworthy. The defence could no t demolish the said corroborated evidence in the cross examination as well as th rough the evidence of DWs 1, 2 and 3. What is more significant is that the evide nce of those witnesses have been corroborated by the evidence of two co-villager s (independent witnesses), PW 2 and 4. In a bid to impeach the evidence of PWs 1 , 2 and 4 to 7, the defence persuaded to establish a point that to reach the hou se of PW 2, injured Nurul was required to pass through at least three houses but the prosecution, without any explanation, chose not to examine any person from those three houses, and that being so, prosecution case that Nurul was running a way with cry for help passing through the said houses, cannot be believed. This approach of the defence is not sound enough to disprove the proved fact that Nur ul arrived at and fell down at the courtyard of PW 2. There may be some reasons for some neighbours for not coming out even after hearing the cry for help in th e night time. The prosecution is not required to examine all the neighbours. It has at least examined two independent witnesses who have firmly stood by the evi dence of other witnesses in support of the prosecution.

19. The same set of prosecution witnesses who have proved the fact o f Nurul being found at the seriously injured state has also testified the fact t hat the injured Nurul made the oral dying declaration in their presence. Having closely surveyed the evidence of PW 1, 2 and 5 to 7, we have noticed that the de fence has not put any suggestion to the effect that the deceased Nurul made no d ying declaration in presence of the aforesaid witnesses at the front courtyard o f PW 2. The defence, therefore, did not take the stand that the deceased, before his death, made no dying declaration. What could be understood from the above a pproach of the defence is that the dying declaration made by the deceased Nurul in such a manner is not an evidence and it cannot be acted upon for convicting t he accused. The fact of making oral dying declaration by the deceased having not been questioned by the defence, the only dispute left with the court is to exam ine its evidentiary value and propriety or sustainability of conviction and sent ence based upon it.

20. The learned Sr. Counsel for the appellants, with regard to dying declaration, largely relied on the decision of the Apex Court in Darshana Devi (supra). There is no dispute over the position of law that where conviction is sought to be based upon oral dying declaration, the exact words of the deceased must be reproduced by the witnesses and variance in the statements of witnesses would materially affect the value of such dying declaration. In the above cited case, the wife committed the murder of her husband when they lost their only chi ld a few weeks before the occurrence and when the couple were living together th ere was no variance in the statements of two witnesses with regard to the exact words allegedly used by the deceased but there was no independent witness while the deceased, before his death, made the oral dying declaration. In the said cas e the prosecution sought support for the dying declaration from the evidence of Municipal Commissioner who stated that he was present at the hospital when a per son with burns accompanied by a female was brought to the hospital and the perso n was crying that (cid:28)he had been burnt by his wife (cid:29). The evidence of said witnes s could not inspire confidence of the court, and therefore, it was held that the prosecution failed to establish the guilt of the accused beyond all reasonable doubt and set aside the order of conviction and sentence. In the present case t he fact and circumstances are distinguishable somuch so the standard of proof on the making of oral dying declaration inasmuch as, besides the related witnesses , two independent witnesses proved the making of dying declaration by the deceas ed. It is not expected that the seriously injured person would repeat the same w ords while crying for help and he would not utter different words to attract the villagers or persons to save him from the assailants. It has been proved by suf ficient evidence that Nurul was running away in the injured state for safety wit h cry for help for quite some time till he reached the courtyard of PW 2. There is nothing unnatural or improbability that in such condition and circumstances N urul cried for help by using different words and phrases. The law that to make t he oral dying declaration acceptable or believable, there should be uniformity in the words used or the evidence of the witnesses should be uniform or that the words making statements should be same, in our considered view, cannot be appli ed universally to all the cases irrespective of the fact and circumstances of th e case.

21. In the case of Ramachandra (supra) the deceased was not in a fit condition to make statements although he could not said to be unconscious. It w as the finding of the court in the said case that although the deceased was cons cious at the place of occurrence, at the time when he was put on the lorry and a lso at the time when he was brought to the nursing home and was in a position to speak he did not disclose the names of the assailants to anybody. It was, there fore, the finding of the court that the said conduct of the deceased can be expl ained only on two hypothesis, namely, that (cid:28)either the deceased was not consciou s at all and was not in a position to talk to anybody or that even though he was conscious he did not disclose the occurrence to anybody because under the stres s and strain of the assault, which took place admittedly at the time when darkne ss set in and there was very little moonlight, he was not able to identify the a ssailants (cid:29). The circumstances in the present case is not similar to ones in the said case inasmuch as the injured Nurul, at the time of making the dying declara tion, as per the evidence, was in a conscious state and he clearly named his ass ailants.

22. In the third case, Subhash (supra) as cited by the learned Senio r counsel for the appellants, the dying declaration was recorded by the SDM in t he hospital under whose jurisdiction the hospital does not fall and no effort wa s made to find out as to whether the Magistrate concerned of the area in which S afdarjung hospital lay was available or not. The said SDM was examined as a witn ess by the prosecution and in cross examination he admitted that he was not appr oached by the police or the medical authorities for recording the dying declarat ion. It was the finding of the court in the said case that the deceased was admi tted in Safdarjung hospital at about 3.05 P.M. on 27.10.1985 but her statement c ould not be recorded as she was unconscious at that time. Further efforts were made by the Sub- Inspector to record the statement of the deceased at 8.30 P.M. which again could not be recorded for the same reason. Thereafter, the statement of the deceased was recorded by the doctor and attested by ASI on 27.10.1985 in which she stated that she had been burnt in an accident. It was observed by the court that repeated efforts had been made by the Investigating Agency to record her dying declaration, but there was some delay because of the incapacity of th e victim. At last on 28.10.1985 the dying declaration was recorded by the said S DM. In our considered view, the aforesaid case as relied upon by the appellants is not applicable to the present case.

23. The last case, Bhajju(supra), as referred to is about burning of wife to death by the accused husband. According to prosecution, PW 2 and 3 reac hed the spot and took the deceased to the hospital and the said PW 2 and 3 were the first persons whom the deceased met and told that her accused husband poured kerosene on her and set her ablaze. Doctor at the hospital (PW 9) stated that h e examined the deceased and found ten injuries on her body with 60% burn injurie s. The statements of the deceased was recorded by the Tahsildar on which the vic tim put her thumb impression. The said doctor also deposed that the dying declar ation was written by him after he found the deceased in full senses to make the statement. The Tahsildar also as a prosecution witness testified the recording o f dying declaration. The court was satisfied with the dying declaration so recor ded by a competent officer of the executive duly attested by a doctor and cross examination of both the witnesses did not bring out any legal or substantial inf irmity in the dying declaration of the deceased, which could render it inadmissi ble or unreliable. The said case does not come to the rescue of the appellants i n the present case inasmuch as the settled position of law as reiterated is that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity and if a dying declaration is found reliable, it c an form the basis of conviction. It has been held even to the extent that the co urt of facts is not excluded from acting upon an uncorroborated dying declaratio n for recording a finding of conviction. The prosecution in the present case is in a better position inasmuch as the dying declaration of the deceased has been corroborated by several witnesses including at least two independent witnesses. No infirmity in oral dying declaration in the present case is no 24. ticed. As per the settled law such dying declaration can be acted upon for convi ction and no corroboration is needed. Even if it is held that in the present cas e there is some infirmity, the same could be acted upon as the evidence on dying declaration is corroborated by all the witnesses including two independent witn esses. There are cases where the Apex Court has held that a court of facts is no t excluded from acting upon an uncorroborated dying declaration for finding conv iction. Corroboration is necessary if in a given case a particular dying declara tion suffers from any infirmity either of its own or as disclosed by other evide nce adduced in the case or circumstances coming to its notice ; the court may as a rule of prudence look for corroboration and if the infirmities be such render ing the dying declaration so impure so as to prick the conscience of the court, the same may be refused to be accepted as forming a safe basis for conviction. T he appellants have taken the stand that the dying declaration of Nurul could not be accepted due to failure of the prosecution to examine the inmates of those h ouses through which he reached the courtyard of Karim (PW2). Non-examination of some neighbours cannot be treated as an infirmity in the dying declaration. The defence had gone oblivious of the fact that no member from those houses came out while Nurul was crying for help in the night and the prosecution had examined i ndependent witnesses PWs 2 and 4. The other ground for casting doubt by the appe llants on the dying declaration is the enmity between the deceased Nurul and PW 2 Karim over the marriage of Sabida Khatun. But it is to be noted that the enmit y between Nurul and Karim has not been proved by any witness. The theory of enmi ty has been imported by the defence only to impeach the credibility of the dying declaration made by Nurul. If the defence really wanted to impeach the credibil ity of the dying declaration, they should have proved it in the evidence that Ka rim had enmity with the appellants over some matter and he organized the dying declaration against them in collusion with PWs 1, 2 and 4 to 7. It is difficult to accept as a correct position that the said prosecution witnesses would falsel y implicate the appellants unless there is any rivalry with the appellants and t hey wanted to wreck vengeance. Besides, the appellants, could not prove any moti ve behind implicating them by the deceased and the aforesaid prosecution witness es.

25. The court of facts has to judge and appreciate the surrounding c ircumstances under which the dying declaration was made. We have already pointed out earlier that the accused appellant No. 1, Chadequl was last seen with the d eceased. It was the appellant No. 1 who visited the house of the deceased and br ought him to his house allegedly for treatment of Sukur. There is no evidence th at the said Sukur was in the house of appellant No. 1 awaiting Nurul for treatme nt. This circumstance is glaringly against the appellant No. 1. It is a strong c ircumstantial evidence proving the fact that Nurul was called by him with some m otive. The undisclosed motive is the reason for causing injury to Nurul and the said injuries caused death to him. As per the evidence on record Nurul came rush ing in the injured state and crying for help towards the house of PW 2 and he fe ll down in his courtyard. The time gap was very small. There was no time for Nur ul to build a story in his mind for implicating the appellants as he made the dy ing declaration immediately after he fell down and the people including PW 1, 2 and 4 to 7 gathered. There was no chance of tutoring or influencing Nurul to mak e statement against anybody ; not to speak of the appellants. He was in such a s tate requiring immediate treatment and so he was taken to a local doctor. Had th ere been a long gap between the falling of Nurul on the front courtyard of Karim and making of dying declaration, a suspicion could have been entertained that Nurul made the statement on being tutored or influenced by others. The circumst ances under which the dying declaration was made by Nurul, does not disclose any thing which may arouse doubt or suspicion. In fact Nurul made the dying declarat ion on the verge of his death inasmuch as he died within a couple of hours of ma king the statement. The Apex Court in several cases including Narain Singh- VS- State of Haryana; reported in (2004) 13 SCC 264 held that dying declaration made by a person on the verge of his death has special sanctity as at that solemn mo ment a person is most unlikely to make any untrue statement. The shadow of impen ding death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. The Apex Court, however, obser ved that the dying declaration like any other evidence has to be tested on the t ouchstone of credibility to be acceptable and it is more so, as the accused does not get any opportunity of questioning veracity of the statement by cross exami nation. It has also been observed that Section 32(1) of the Indian Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissibl e evidence and unless evidence is tested by cross examination it is not creditwo rthy. Having considered the circumstances under which the deceased Nurul made th e dying declaration, in the light of the aforesaid decisions we are more than co nvinced that the dying declaration of Nurul has passed the test of reliability a nd we accept the same as worthy of being the basis of awarding conviction agains t the accused persons. The learned trial court committed no error in resting the order of conviction and sentence on the dying declaration of Nurul and there be ing no infirmity, we, unhesitatingly uphold its finding and conclusion. Conseque ntly, the conviction and sentence which are under challenge in this appeal stand upheld.

26. . The appeal fails and stands dismissed. Return the LCR forthwith