High Court · 2012

On 1.12.1999, the informant Md. Harish Ali lodged an ejahar before the In-charge of Khelmati, T.O.P., alleging therein that on 30.11.99, as many as seven accuse d persons named in the FIR way laid his brother Hafiz Ali (deceased), by forming a group near N.T. Road, in front of the warehouse with an intention to kill him . It has been further alleged in the FIR that brother of the first informant was hacked on his head with long sharp dao, causing grievous injury. People present in the locality took his brother to the Civil Hospital in a serious condition. However, the injured victim died in the hospital on the same day, at around 9.30 P.M. The FIR was accordingly registered by police and investigation was launched. On completion of the investigation, the Investigating Officer submitted charge shee t against accused i) Md. Harej Ali, ii) Md. Hedayetul Islam, iii) Md. Asraful Al i, Md. iv) Ahmed Ali, v) Md. Suraj Ali, vi) Md. Amjad Ali and vii) Md. Abdul Hak im alleging commission of offence under Section 147/341/302 IPC. Learned Additional Sessions Judge (FTC), finding sufficient materials framed for mal charge u/s 302/34 IPC.

3. During trial, the prosecution side examined as many as ten (10) witnesse s including the Investigating Officer and the Medical Officer, who had carried o ut the post mortem examination of the deceased. On conclusion of the recording o f the prosecution evidence, the defence statement of the accused persons under S ection 313 CrPC was recorded by the trial Court. The defence plea of all the acc used persons is that of total denial. The accused persons did not adduce defence evidence. On conclusion of the hearing, the learned trial Court acquitted the a ccused Md. Asraful Ali, Md. Suraj Ali, Md. Amjad Ali and Md. Abdul Hakim, on ben efit of doubt. However, accused-appellant Md. Hedayetul Islam and Md. Harej Ali, were found guilty under Section 302 IPC and accordingly, they were convicted as aforesaid giving rise to this appeal.

4. We have heard Mr. H.R.A. Choudhury, learned senior counsel appearing for the appellants and Mr. K.A. Mazumdar, learned Addl. P.P. for the State of Assam .

5. Mr. Choudhury, learned senior counsel appearing for the appellants submi tted that ’ejahar’ was filed by the first informant belatedly giving rise to sus picion of concoction, in the prosecution case. Learned counsel further pointed o ut that witnesses contradicted with each other and thus could not support the pr osecution version. According to the learned counsel for the appellant, there wer e no eye witnesses to the occurrence, therefore most of the co-accused facing tr ial were acquitted, therefore, conviction of the appellants is illegal and unsus tainable. Learned counsel for the appellants further pointed out that the oral dying declaration can not be taken into account since the State of physical and mental condition after the injury was not evaluated by the doctor, attending him , immediately after the incident.

6. Mr. K.A. Mazumder, learned Addl. P.P. however, submitted that the prosec ution side has been able to establish the charge under Section 302/34 IPC agains t the appellants beyond all reasonable doubts, by adducing cogent and reliable e vidence.

7. In order to appreciate the arguments advanced by the learned counsel for the appellants as well as the State-respondent, we would like to discuss the co re of the prosecution evidence.

8. PW-1, is the brother of the deceased Md. Hafiz Ali. According to him at about 5 P.M. on the date of occurrence, PW-3, Ataur Rahman and the deceased Md. Hafiz Ali, were at their brick shop at Khelmati. Thereafter, they had gone toge ther to Khelmati Masjid for performing ’Namaj’. After coming out from the Mosque , PW-1 and deceased Md. Hafiz Ali went to the nearby shop, for purchasing biscui ts and thereafter, the deceased Hafiz Ali went away by riding his scooter. Some time later he got the information that his brother was murdered. PW-1 rushed to the place of occurrence and found that his brother having been assaulted by dao, was being shifted to the hospital for treatment, in an injured condition. PW-1 rushed to the hospital to see his brother, where he met Ataur Rahman (PW-3) and Jamaluddin (PW-4). PW-1 found his brother in a severely injured condition, with profusely bleedings injury on his head. PW-1 was informed at the hospital b y Ataur Rahman (PW-3) and Jamaluddin (PW-4) that the accused Hedayetul Islam had assaulted his brother on his head by a rod and accused Harej Ali assaulted him by a dao on his head. PW-1 also stated in his deposition that at about 3 P.M. in the evening, he had seen all the accused near the shop of accused Ashraful Ali (since acquitted). PW-1 stated that his brother expired at about 9.30 P.M. on th e same day in the hospital.

9. PW-2 who claimed to an eye witness to the occurrence deposed that he was with Atuar Rahman (PW-3) at the time of occurrence. PW-2 saw the victim Md. Haf iz Ali, going home by riding a scooter and when the victim reached near the Ware house, appellant Md. Hedayetul Islam signaled him to stop. When the victim stopp ed there appellant Md. Harej Ali immediately assaulted Hafiz Ali by a dao and ac cused Md. Hedayetul Islam assaulted the victim by a rod on the fore-head near th e eyes. The victim fell down on the road. He (PW-2) then rushed to the place of occurrence, but the accused persons fled away. According to this witness, PW-3 a nd PW-4 took the victim to the hospital in a Rickshow and he had gone to Khelmat i T.O.P. to inform the police about the occurrence. According to PW-2, accused A bdul Hakim was also in the hospital. When the doctor said that there is no chanc e of recovery, accused Abdul Hakim became nervous went away from the hospital. L ater at about 9.30 p.m., the victim expired. On next day the FIR was lodged. Pol ice seized some clothes of the deceased vide Ext-3.

10. PW-3, stated that on 30.11.1999 at about 4.30 P.M. he along with PW-1 an d the deceased were at their shop. PW-1 and the victim went away to attend the N amaj from there. But, he (PW-3) did not accompany them and he went home. On his way home, near the Shiv Mandir, PW-3 came to purchase meat. In the meat shop, he found Muslim Ali (PW-2). Then PW-3 and PW-2 on hearing ’hullah’ (hue and cry) n ear the main road, rushed to the place of occurrence.

11. He (PW-3) found the victim lying on the road with bleeding injuries, but was alive. At the place of occurrence, he also met Jamaluddin (PW-4). Then PW-1 with the help of PW-4, put the victim in a Rickshaw. PW-3 also went to hospital in the same Rickshaw. According to PW-3, in the Rickshaw on their way to hospit al, the deceased/victim had told them that accused Md. Harej Ali, son of Md. Ahm ed Ali had assaulted him by a ’dao’ and accused Md. Hedayetul Islam assaulted hi m by a rod near his eyes. But, the victim expired at about 9.30 P.M. Statement o f PW-3 was recorded under Section 164 CrPC by the Magistrate, which was marked a s Ext-4 and Ext-4(1) and Ext-4(2) being his signatures in the statement. PW-3, c ontradicted his own statement made under Section 164 CrPC to state that he did n ot see the occurrence but he was not declared hostile by the prosecution. Howeve r, PW-3 was thoroughly cross-examined by confronting his earlier statement made under Section 164 CrPC by the prosecution. In his cross-examination PW-3 stated that the injured had told them that appellant Harej Ali had inflicted dao blow.

12. According to PW-4 Jamaluddin, at the time of occurrence on 30.11.99, he was in the market of Bantogoan. On hearing ’hullah’ towards the main road, PW-4 came and saw Md. Hafiz Ali, a co-villager, who was lying on the road in a pool o f blood and Ataur Rahman (PW-3) was trying to lift the victim in a Rickshaw. Mus lim Ali (PW-2) called the Rickshaw. Then (PW-4) and Atauar Rahman (PW-3) took th e victim to the hospital in a Rickshaw and PW-2 Muslim Ali had gone to the Polic e Station to inform the occurrence. Further, version of the PW-4 was that on the way to hospital in the Rickshaw, the victim Hafiz Ali told them that accused Md . Hedayetul Islam had assaulted him by a rod and accused Md. Harej Ali assaulted him by a ’dao’. In the hospital the other family members of the victim were als o present. Statement of PW-4 was recorded by the learned Magistrate under Sectio n 164 CrPC, which was marked as Ext-5. Ext-5(1) and Ext-5(2).

13. From the above discussion of the evidence adduced by the PW-1, PW-2, PW -3 and PW-4, it is manifestly clear that their evidence received corroboration f rom each other in respect of the deceased being shifted to the Hospital after th e incident. PW-2 stated to have seen the occurrence. According to PW-2 he was at the meat shop when he saw the accused Md. Hedayetul, signal the victim to stop, who was going home by riding a scooter. When the victim stopped, accused Harej Ali by coming running from behind the accused Hedayetul, assaulted the deceased by a rod on his forehead near the eyes and gave a ’dao’ blow on the head of the victim. PW-3 and PW-4 stated that while they were carrying the victim to the hos 14. pital in a Rickshaw the victim had told them that the accused Hedayetul Islam ga ve him a blow by a rod over the forehead and accused Harej Ali gave a dao blow o n his head.

15. PW-1 deposed that hearing the news of assault. We had gone to the place of occurrence and there he came to know that the accused persons had assaulted t he victim and in the meantime the victim was carried to the hospital. Immediatel y, PW-1 rushed to the hospital and met PW-3 and PW-4. However, the victim had se vere injuries on his person. PW-1 and one Akbar Ali donated blood to save the li fe of the victim. But, their effort went in vain as the victim did not survive. Defence, however by cross-examination of the prosecution witness could e 16. stablish that there was a land dispute between the parties and some other crimin al cases were also filed against each other, prior to the occurrence. According to the defence suggestion , out of previous grudge relating to the dispute and p ending cases, the witnesses had deposed falsely implicating the accused persons.

17. PW-6, Dr. Munindra Narayan Bordoloi, who had carried out the post mortem examination of the deceased Hafiz Ali, found the following injuries - Injury - A cut injury over head extending from the right orbital margin to middl e of the posterior aspect of the neck, lies obliquely above the right ear (the i njury was stitched). Size was 10 (cid:29) X ‰’ X 2 (cid:29). Skull bones under the injury were c ut. Meninges were cut. Brain maters injured. Sub durael haematoma present. Thora sic walls and other healthy. Heart lungs etc were healthy. There was no disease or deformity or fracture. Stomach was healthy and contained undigested foods. Sm all intestine was healthy and contained semi digested foods. Large intestine was healthy and contained faecal matters. Liver, spleen, kidneys, bladder, organs o f generation etc. were healthy. Injury described was anti mortem in nature and was caused by sharp cutting weapo n. (cid:29) In the opinion of P.W .6 deceased died as a result of shock and hemorr hage resulting from the injuries sustained. According to PW-6, he found only ’on e injury’ on the head of the deceased caused by sharp cutting weapon.

18. According to PW-8, at the time of occurrence, he was waiting in a tailor ing shop. The owner of the tailoring shop had gone out side by requesting him to sit in the shop till his return. Then he heard some one shouting (cid:28)Nemaribi, Nem aribi (cid:29). When PW-8 came to the place of occurrence he could see a person was lyin g on the ground, under the scooter. There he met Jamaluddin (PW-4), who was tryi ng to rescue the injured person. PW-8 also took part in the rescue. Jamaluddin ( PW-4) told PW-8 that the injured was Hafiz Kaka. When PW-8 asked, Hafiz Kak @, H afiz Ali, the deceased told him (cid:28)Alaarey, Harej Ali had beaten and assaulted me (cid:29) . Thereafter, the other witnesses took the injured to the hospital.

19. PW-2, PW-3, PW-4 and PW-8 stated in their deposition that the deceased h ad told them about the occurrence and assault made by appellants/accused Hedayet ul Islam and Harej Ali. Learned counsel for the appellants would submit that th is piece of evidence cannot be said to be oral dying declaration. In order to pu t the stamp of reliability upon the oral dying declaration, it must be recorded in the language of the deceased himself. Further, the prosecution must prove tha t the deceased was in a fit state of mind to give the oral dying declaration. Mo re so, the witnesses did not corroborate with each other in reproducing the dyin g declaration made by the deceased. In support of his submission learned counsel for the accused referred to the case of State of Karnataka Vs. Ghanendra and ot her reported in 2006 Crl. J 3156.

21. In Waikhom Yaima Singh v. State of Manipur,(2011) 13 SCC 125, the Apex Court observed as follows : 19. It is also to be seen that the deceased was very seriously injured, so much so that according to the witnesses, he died immediately after allegedly making t he said dying declaration, the time of which is not fixed by the prosecution. Th e most important circumstance about this dying declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make such a dying declaration. 20. There can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly rel iable, voluntary and truthful and further that the maker thereof must be in a fi t medical condition to make it. The oral dying declaration is a weak kind of evi dence, where the exact words uttered by the deceased are not available, particul arly because of the failure of memory of the witnesses who are said to have hear d it. In the present case also, the exact words are not available. They differ f rom witness to witness. Some witnesses say about the name of the village of the appellant having been uttered by the deceased and some others do not. Further, D r. Ningombam Shyamjai Singh (PW 12) was also not cross-examined by the Public Pr osecutor in this case about the medical condition of the deceased and further fa ct as to whether he was in a fit condition to make any statement. (cid:29)

22. Very surprisingly the act of oral dying declaration by the deceased to PW-2, PW-3, PW-4 and PW-8 was not put to the accused persons specifically puttin g names of these witnesses while recording the statement under Section 313 CrPC. On this count alone, the oral dying declaration is not acceptable. In this rega rd we may refer to the decision of the Apex Court in Sunder Singh v. State of Ut taranchal, (2010) 10 SCC 611, wherein it was observed as follows: 35. Very unfortunately, though the panchnamas on which these two witnesses, PW 2 and PW 3 have put their signatures were put to the accused. However, this f act of oral dying declaration by Pratap Singh put to both of them was not put to the accused. It is really a matter of concern that even the trial Judge did not frame the question in Section 313 CrPC examination specifically putting the nam es of these two witnesses. Thereby a very important circumstance is lost. We hav e not allowed ourselves to be influenced by these two oral dying declarations. H owever, we are mentioning these facts only with a view to caution the trial cour ts to be extremely careful about the questions to be put to the accused persons in examination under Section 313 CrPC. Record must show that meticulous care is taken to put all the incriminating circumstances to the accused. It is found tha t the trial courts sometimes are extremely casual about this aspect and fail to put all the incriminating circumstances to the accused. We would expect the tria l courts to be extremely careful in this behalf. It is only with this idea that we are mentioning these facts (cid:29)

23. As rightly pointed out, an oral dying declaration made by the deceased c an be relied on only after ascertaining that the deceased was in a fit state of mind to make such oral dying declaration. In the present case, the deceased, aft er the assault, was carried to the hospital in a Rickshaw. On his way the deceas ed stated to have told PW-3 and PW-4 that accused Hedayetul Islam and Harej Ali had assaulted him by lathi and dao, respectively. Thereafter, the deceased succu mbed to the injury. Apparently there was no time to comply with the formalities of recording the dying declaration. On the other hand we do not find any proof regarding the state of health of the deceased when he was admitted in the hospit al. The prosecution did not come forward to prima-facie prove the state of healt h of the victim by adducing evidence of the attending doctor, to remove the b lemish of unreliability on the evidence of the PW-3 and PW-4 regarding dying dec laration made by the victim. On the top of it, the witnesses, who were present w ith the victim stated nothing to vouchsafe good physical and mental condition of the victim at the time of making the oral dying declaration. Therefore, the or al dying declaration made by the deceased is unreliable. More so, the evidence of PW-3 and PW-8 about oral dying declaration, do not corroborate with the testi mony of PW-2 and PW-4.

24. PW-2, who claims to be only eye witness to the occurrence, is nephew of the deceased. Admittedly, a case was also filed against PW-2 by Ahmed Ali in a land related matter. PW-2 admitted to have been present near the slaughter ho use, together with Ataur Rahman (PW-3) from where he saw the deceased going in a scooter and the accused persons attacking the deceased.

25. However, Ataur Rahman, PW-3, was admittedly present with PW-2, near th e slaughter house. PW-3 stated that while he was with PW-2, they heard a hue and cry towards the west. Both of them (PW-2 and PW-3) ran towards the place of occ urrence to find the deceased lying on the road.

26. The above contradiction in the statements of PW-2 and PW-3 belie s the evidence of PW-2 being an eye witness to the occurrence. PW-3 was not decl ared hostile. If PW-2 and PW-3 were together then both of them ought to have see n the occurrence. If PW-3 did not see the occurrence despite being together with PW-2 at the relevant time, either PW-3 had poor vision or he was telling a lie. However, PW-3 was not declared hostile, therefore, there is no reason to disbel In such circumstance, PW-2 cannot be believed to be eye witness ieve him. to the occurrence.

27. In totality of the evidence, in our considered view the prosecution could not establish the charge beyond all reasonable doubt by adducing cogent, reliabl e and trustworthy evidence. On perusal of the evidence on record, we find that t he discrepancies and contradiction in the evidence of the witnesses in material particulars substantially demolished the entire evidence of the prosecution. It is settled law that if the evidence of the prosecution witnesses are found trustworthy and reliable, any minor discrepancies or contradictions, would not a ffect the merit of the case and minor contradictions, inconsistencies, embellish ments or improvements on trivial matters, which do not affect the core of the pr osecution case, should not be made a ground for rejection of evidence in its ent irety. The court has to form its opinion about the credibility of the witness an d record a finding as to whether his deposition inspires confidence. Exaggeratio ns per se do not render the evidence brittle. But it can be one of the factors t o test credibility of the prosecution version, when the entire evidence is put i n a crucible for being tested on the touchstone of credibility.

28. Although simple marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statemen t made by the witness earlier. But contradictions in material particulars go to the root of the case and materially affect the core of the prosecution’s case, r endering the testimony of the witness liable to be discredited.

29. Because of what have been discussed and pointed out above, we have no hesitation in holding that conviction of both the accused-appellant, above n amed is not based on cogent, convincing, reliable and legally admissible eviden ce and conviction warrant interference by this Court. 30. In the result and for the reasons discussed above, conviction of th e accused-appellants and also the sentence, passed against them are hereby set aside. The accused-appellants, are hereby directed to be set at liberty forthwit h unless they are required to be detained in connection with some other case. 31. With the above observations, the appeal shall stands disposed of. Send back the lower court records together with a copy of this order.