High Court · 2012

(P.K. Musahary,J.) 1. Dr. B. Ahmed, learned counsel submits that the brief has been withdrawn from him by the accused appellant and he is not in a position to argue the case. In view of such submission, this Court appoints Mr. B. Chakraborty, lear ned counsel as amicus-curiae to appear for the appellant and to assist the Court . 2. It may be mentioned here that by an order dated 24.04.2012, this Court i ssued notice upon the appellant to show cause as to why order dated 03.06.2005 p assed in Misc. Case No. 519/04, allowing him to go on bail should not be vacated and why he should not be committed to jail. The said notice was made returnable on 28.05.2012. The office note dated 25.05.2012, shows that the notice was sent by speed post on 27.04.2012, but the same has not yet been returned after due s ervice. 3. I have heard Mr. Chakraborty, learned counsel as amicus-curiae for the a ppellant and Mr. K. Munir, learnd Addl. Public Prosecutor, Assam, for the respon dent. The appellant was convicted under Section 402 IPC and sentenced to under 4. go rigorous imprisonment for 3 years and to pay fine of Rs. 500/- (Rupees five h undred) only, in the default to undergo rigorous imprisonment, for another 3 mon ths vide judgment dated 16.08.2004 rendered by the learned Sessions Judge, Karim ganj in Sessions Case No. 23/2002, corresponding to G.R Case No. 211/98. 5. The prosecution case in brief is that on 08.02.1998 at about 4.15 p.m., one Pradip Joyti Sharma, S.I. of police, lodged an Ejahar with the O/C, Ratabari Police Station alleging that on 07.02.1998 at about 8.25 p.m., while he, along with one constable, was conducting confidential enquiry about the whereabouts of a wanted dacoit, namely, Moina Mia and his associates in Maniknagar area, he ca me to know from a reliable source that the gang of dacoit comprising 10 to 12 in numbers, headed by the said Moina Mia assembled inside the deep forest of Ichar khouri Maniknagar area for committing dacoity in the nearby village and the daco its would leave the place at any moment. The informant accompanied by the said constable immediately rushed to the place, but the dacoits started firing at the m and they also encountered with the police party. As a result, one Kala Mia die d at the spot, while 2 others, namely, Aftar Ali, and Mustt. Monowara Begum sust ained injury. The other gang members managed to escape. The police seized one ha nd-made pistol with 2 rounds of hand-made cartridges from the possession of inju red Aftar Ali. The said injured persons were sent to hospital for treatment. In connection with the said incident, a case being Ratabari 25/98 was registered un der the Section 402/ 353/ 307 IPC read with Section 25 (I-B) of the Arms Act. On completion of the investigation, the Investigating Officer submitted the charge -sheet against the appellant under the said sections of law, showing his name as an absconder. At the latter stage, the appellant surrendered before the Court. The case was committed by the Magistrate concerned to the learned Court of Sessi ons, Karimganj. After hearing the parties and considering all the materials on r ecords, framed charged under Section 402/ 307 IPC against the appellant. The afo resaid charges being read over and explained the appellant pleaded not guilty an d claimed to be tried. 6. During the trial, the prosecution, in order to establish the charge, exa mined as many as 5 witnesses and after completion of recording of evidence of th e prosecution witness, the appellant was examined under Section 313 Cr. P.C. He denied all the allegations and incriminating evidence against him and declined t o adduce evidence in his defence.

7. I have perused the records received from the Court below and also the ev idence adduced by the prosecution witnesses. The key witness is P.W. 1, Shri Pra dip Joyti Sharma, who led the police team to apprehend the dacoits and faced the encounter. In the encounter, as per the evidence of P.W. 1, one of the members of the gang, named Kala Mia was shot dead while 2 other persons including one la dy received injuries to their persons in the encounter. The said P.W. 1 filed th e Ejahar on the basis of which the aforesaid P.S. Case was registered. The other important witness is P.W. 4 Dr. Dilip Deb Roy, who, on police 8. requisition, came to the place where the appellant was lying in the jungle in th e injured state and after examining his physical condition, recorded the dying d eclaration made by him in presence of Sri Subimal Maiti, P.W. 2 and Sri Pradip J oyti Sharma, P.W. 1. The said dying declaration had been proved by P.W. 4 and ma rked as Exhibit-3. After recording the dying declaration, the appellant was shif ted to Ramkrishnanagar PHC in the night itself but he succumbed to his injury on the following date.

9. As per the evidence, P.W. 2, Subimal Maiti was called by police to the p lace where the appellant was found and he testified that he found that the injur ed appellant in the Jungle lying in an injured state. He also testified the visi t of the Doctor and recording of the dying declaration, of the appellant.

10. From the evidence on record, the prosecution has been able to prove that the appellant was the leader of the gang of the dacoits. He was wanted by polic e in connection with several cases, and in fact, P.W. 1 knows the appellant pers onally and knows about his criminal background. It also reveals from the record that he was absconding after being released on bail in connection with this case . 11. Coming to the dying declaration, Exhibit-3 , it is noted that the P.W. 4 , who recorded the said statement, did not certify or make any statement regard ing the physical or mental state of the dying person. 12. There is another aspect to be noted in this case. In the FIR, Exhibit-2, there is a no mention about recording of the dying declaration of the deceased. This aspect of the matter could have been mentioned in the FIR itself inasmuch as the Police Officer, P.W.1, was in action from the beginning till he requisiti oned the Doctor to the place where the deceased was found and lodging of the FIR after recording of dying declaration.

13. What I have seen is that the learned trial Court rested the conviction a nd sentence mainly on Exhibit-3, the dying declaration, but the very fact of rec ording the dying declaration, has found no mention in the FIR. In the dying decl aration also the Doctor failed to give a certificate or statement on the mental and physical condition of the injured and the urgency of recording the dying dec laration in the Jungle. The learned Trial Court also acted upon the said dying d eclaration, without taking into account all the lapses and irregularities in rec ording the dying declaration. The prosecution, in my considered view, failed to prove beyond all reaso nable doubt that the appellant, on the particular date led his party and he was present in the Jungle to commit dacoity as alledged by the prosecution. It is on e thing to say that the appellant is the leader of the gang, but it is quite dif ferent to say that he was personally present with the gang at the time of commit ting dacoity in the area. For the aforesaid reason, in my considered view, the appellant is entitl 14. ed to get an order of acquittal on benefit of doubt and accordingly, the appella nt is hereby acquitted on benefit of doubt. The order of conviction and sentence passed by the learned Trial Court which is under challenge is hereby quashed an d set aside. The appellant stands acquitted on benefit of doubt. The bail bond o f the appellant stands discharged. 15. The State Legal Authority is directed to pay an amount of Rs. 5,000/- (R upees five thousand) only to Mr. B. Chakraborty, learned counsel, who has assist ed this Court as amicus-curiae, as his legal fees. 16.