Judgment · High Court · 2012

#02. We have heard Mr. A.K. Bhattacharya, learned Senior Counsel for the appellant and Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, Assam for the State.

#03. On 16.03.2004, one Samsul Hoque lodged an ejaher with the Office r-in-Charge, Mankachar Police Station, Patharia, Dhubri alleging that at 10 p.m. on the previous date i.e. 15.03.2004, the accused-appellant had in conspiracy w ith the other four persons named therein called his younger brother Md. Maha Alo m Seikh from his house and thereafter assaulted him (Md. Mah Alom Seikh) along w ith the others waiting on the bank of the pond of one Ainul Haque inflicting sev ere injuries in his abdomen and back with a dagger, which was being carried by t he accused-appellant. The FIR disclosed that the injured was immediately rushed to the Gazarkandi Health Centre for treatment, who, eventually having regard to his serious condition, was referred to Tura, but he died on the way. On this information, Mankachar P.S. Case No.59/2004 was registered under Section 147/148/342/326/302 IPC and on the completion of the investigation, charge shee t was laid against the accused-appellant along with Raju Alom, Abdul Jaher, Md. Samirul Islam and Lutfur Rahman. The learned trial Court framed charge against all these five persons under Section 302/149, to which they pleaded (cid:28)not guilty (cid:29) and claimed to be tried.

#04. At the trial, the prosecution examined 10 witnesses including th e doctor who had performed the post mortem examination as well as the investigat ing officer. Thereafter, the statements of the accused persons were recorded un der Section 313 of the CrPC. They having declined to adduce any evidence in def ence, the learned trial Court on a consideration of the materials on record conv icted and sentenced the accused-appellant, as above.

#05. Before adverting to the rival arguments, appropriate it would be , for this Court exercising first appellate jurisdiction, to have a brief overvi ew of the evidence on record. PW-1 Md. Samsul Haque, the informant deposed on oath that the de ceased Md. Maha Alom was his brother and that the occurrence took place at night by the side of a pond located behind his house. According to this witness, as he heard a wail from the side of the pond, he rushed thereto and found several p ersons present thereat. He stated as well that the deceased was lying on the gr ound with stab injuries and when he asked him about his assailants, he (deceased ) mentioned (cid:28)Fakser, Raju, Samirul, Zaher, Lutfur. (cid:29) This witness affirmed that the injured died on the way to the hospital, whereafter, he lodged the FIR with the police. He also stated that the police on visiting the place of occurrence, seized one dagger. He identified the weapon as M.Ext-1.

#06. In cross-examination, this witness disclosed that when he was pr esent at the place of occurrence, the deceased was able to speak and was surroun ded by several persons. He admitted that the factum of utterance of the decease d naming his assailants had not been mentioned in the FIR. While denying the su ggestions made by the defence that he had not stated before the police the facts disclosed in his testimony in Court, the witness admitted that the fateful nigh t was a dark one and that there was no light at the place of occurrence. PW-2 Mustt. Dipali Khatun, the widow of the deceased testified t 07. hat Farhins Khurshed had called away her husband from the house in the night of the incident at about 9.30 p.m., whereafter, she heard hue and cry from the bank of the pond. The witness stated that she then saw Farhins Khurshed along with Lutfur, Raju, Samirul and Jaher running towards the jungle. On her arrival at th e place of occurrence, she found her husband with a dagger in his chest lying on the bank of the pond. On being asked, as to who had injured him, the deceased told her that Farhins Khurshed was the assailant. This witness further stated t hat he (her husband) disclosed to her that Samirul, Lutfur, Raju and Jaher held him and Khurshed stabbed him with dagger. According to her, this version was na rrated by the deceased to the other village people present. She affirmed that h er husband sustained injuries in the belly and back. She affirmed that Samsul H aque, her husband’s elder brother had lodged the FIR. In cross-examinations he admitted that the night was dark and that she had not s een the incident herself. She denied as well the suggestions made on behalf of the defence that the facts disclosed by her at the trial had not been narrated b efore the police.

#08. PW-3 Md. Mahibur Rahman is the cousin brother of the deceased an d according to him, he reached the place of occurrence on hearing a commotion th erefrom. He affirmed about the injuries sustained by the deceased in his abdome n and that he was removed in an injured condition to the Kukurmara hospital. Th is witness testified further that at the time of the arrival at the spot, the de ceased was in a position to speak and that upon being asked by the doctor at the hospital he (deceased) disclosed that Khurshed had stabbed him with dagger whil e the four others held him. This witness proved the seizure of the dagger from the bank of the pond and also identified the weapon as M.Ext-1 in Court. In cro ss-examination, this witness clarified that the deceased had not named anybody e xcept Khurshed who had injured him.

#09. osition is not essential to be elaborated. PW-4 Md. Farizuddin is a reported witness and therefore, his dep

#10. bout an hour thereafter, he did not accompany the deceased to the hospital. Though, PW-5 Manirul Islam had reached the place of occurrence a

#11. PW-6 Sapirul Islam claimed to have rushed to the place of occurr ence on hearing shouts therefrom and seen in the light of his torch Khurshed, Sa mirul, Jaher, Lutfur Rahman and Raju running away. He deposed to have seen the deceased lying on the bank of the river with injuries on his body and that he di ed on his way to the Kukurmara hospital. In cross-examination, this witness con ceded of not having handed over his torch to police. He also affirmed of not ha ving seen the occurrence of assault on the deceased.

#12. m examination, deposed to have located the following injuries on the dead body: PW-7 Haranul Rashid, the doctor who had performed the post morte (cid:28)1. One cut injury old stitch 8 in number measuring 5 (cid:29) in length over right 5th, 6th, 7th and 8th intercostals space, in the right parasternal line on the chest. All the bones and cartilages of the 5th, 6th, 7th and 8th ri bs are cut. Right pleuraly space is full of blood and right lung is collapsed. 2. One cut injury measuring 2 (cid:29) x ‰ (cid:29) over right loin. 2 stitche s are seen. On dissection right kidney is found lacerated and retroperitoneal s pace is full of blood. (cid:29) This witness testified that these injuries were ante mortem in n ature and that the cause of death was due to shock and haemorrhage as a result o f the injuries sustained by the deceased. He proved the post mortem report, Ext -2. In cross-examination, this witness inter alia stated that whether the injur ed before his death was in a state of delirium could be disclosed by the doctor who treated him for the first time. PW-8 Atowar Rahman, who on the date of the occurrence was the Me 13. dical Officer (Ayurvedic), Bazari Kandi PHC had examined the injured at about 11 p.m. on the date of the incident and stated that he (injured) was then in a cr itical condition but could talk with difficulty. The witness further stated tha t he provided preliminary treatment and administered painful stimulation twice. In course of which, the injured uttered that he had been assaulted by Khurshed. In cross-examination, this witness confirmed that the condition of the patient then was critical and not normal. PW-9 Sri Kusha Chandra Deuri is the Investigating Officer who na 14. rrated the steps taken by him in course of the investigation including the seizu re of a dagger, M.Ext-1. In cross-examination he stated that he did not conduct the inquest on the dead body. He conceded as well that he did not seize any to rch-light or lamp, but affirmed to have seized the dagger from the place of occu rrence.

#15. body proved the report to that effect i.e. Ext-8. PW-10 Sri Jayanta Kr. Das had conducted the inquest on the dead

#16. Noticeably, in course of the recording of the statement of the a ccused-appellant, the learned trial Court while framing question No.19 pertainin g to the testimony of PW-8 Dr. Atowar Rahman did not confront him with the state ment of the witness that in the process of painful stimulation of the inured he had uttered that he (appellant) had assaulted him (deceased). Mr. Bhattacharya has argued that though the FIR was lodged afte r the injured had died, there is no whisper of the dying declaration allegedly m ade by him (injured) implicating the accused-appellant and the co.accused as the assailants and on that count alone the prosecution case being untrustworthy oug ht to have been rejected outright by the learned trial Court. According to the learned Senior Counsel, the evidence of PW-1, PW-2 & PW-3 cumulatively considere d demolishes the prosecution theory of dying declaration and thus the accused-ap pellant alike his co.accused is entitled to a honourable acquittal. Pointing ou t, in particular, that the testimony of PW-3 vis-à-vis the aspect of dying decla ration is inadmissible being hearsay in nature, the learned Senior Counsel furth er urged that the prosecution has totally failed to prove by cogent and convinci ng evidence that with the injuries sustained, the deceased at the relevant point of time was in a fit state of mind to recall and identify his assailants. Mr. Bhattacharya emphasized that not only the omission on the part of the learned tr ial Court to confront the accused-appellant with the incriminating testimony of PW-8 pertaining to the alleged dying declaration of the deceased is fatal for th e prosecution, having regard to the charge framed and the acquittal of the co.ac cused on the ground of lack of their identity as the assailants, the impugned ju dgment and order merits interference in the interest of justice. To reinforce his pleas, Mr. Bhattacharya has placed reliance on the decisions of the Apex Court in 2011 CRI. L.J. 2672(Kuldeep Singh v. State of Punjab); AIR 1953 SC 420(Ram Nath Madhoprasad and others v. State of Madhya Pra desh); AIR 1975 SC 1026(Ram Kumar Pande v. The State of Madhya Pradesh); AIR 199 4 SC 464(Ramsai and others v. State of Madhya Pradesh); AIR 1978 SC 1647 (Muthu Naicker and Ors. Vs. State of Tamil Nadu). The learned Addl. Public Prosecutor, however has contended that 17. it being more than obvious from the consistent testimony of PW-1,2,3 & 8 that th e deceased in his clear and unqualified dying declaration had identified the app ellant to be his assailant, the learned trial Court was perfectly justified in recording the conviction against him. Not only, as evidence of the witnesses wo uld demonstrate, that the deceased at all relevant points of time was in a fit m ental state of discernment, the accused-appellant had been identified in the lig ht of the torch by PW-6 as well. Mr. Mazumdar argued that the injuries found on the dead body of the deceased were wholly compatible with the weapon of assault seized from the place of occurrence and thus it being evident from the material s on record that the accused-appellant was the perpetrator of the crime, no inte rference with his conviction and sentence is warranted.

#18. We have scrutinized the materials on record and have lent our an xious consideration to the rival submissions made. That the case of the prosecut ion is founded on the plain dying declaration of the deceased is obvious. There is no eye witness to the incident. Noticeably, though the FIR was lodged by PW- 1 after the demise of the deceased, there is no mention of such dying declaratio n in the FIR. No explanation is also forthcoming to this effect. The testimony of PW-1 reveals that when he inquired of the deceased about his assailants, the latter only uttered five names but did not refer to the accused-appellant. The testimony of this witness also does not disclose as to the role attributed by t he deceased to the co.accused in the offence. The evidence of PW-2 which refere nce to the claim of dying declaration of the deceased, however divulge the invol vement of the accused-appellant and four others named therein. According to thi s witness, her husband stated that while Samirul, Lutfur, Raju and Jaher held hi m, the accused-appellant stabbed him with dagger. The testimony of PW-3 on the aspect of dying declaration does not inspire confidence, as it is not very clear , as to whether he was present when the deceased had uttered to the attending do ctor in the hospital that the accused-appellant had stabbed him with dagger, wh ile four others held him. The statement of PW-8 Dr. Atowar Rahman to the effect that the deceased had uttered to him that he had been assaulted by Khurshed for whatever worth is of no probative value, the learned trial Court having failed to confront the accused-appellant therewith in course of his examination under S ection 313 CrPC. That it was dark around the place of occurrence that night is m ore than evident from the testimony of the witnesses.

#19. The learned trial Court on an analysis of the evidence adduced b y the prosecution reached the conclusion that the presence of the accused person s other than the accused-appellant was doubtful at the place of occurrence and t hus acquitted them on the benefit of doubt. The accused-appellant however was c onvicted by acting on the dying declaration of the deceased said to have been ma de before PW-1, 2, 3 and 8. On a cumulative consideration of the evidence of these four pros 20. ecution witnesses, we are unable to convince ourselves about the sufficiency of the proof of dying declaration as contemplated in law to record conviction of th e accused-appellant on the basis thereof. Not only, the utterances said to have made by the deceased in a critically injured condition, have not been reproduce d in his exact words, the versions of the witnesses relatable thereto lack coher ence and persuasion. In absence of any other corroborative evidence and in view of the inexplicable omission on the part of the informant to mention such a dyi ng declaration in the FIR, we are of the unhesitant opinion that it would be un safe to sustain the conviction of the accused-appellant. This is also in the fa ce of the acquittal of his co.accused for want of evidence of their identity and culpability in the same offence though charged along with the accused-appellant under Section 302/149 IPC.

#21. That oral dying declaration is a weak piece of evidence, more pa rticularly when exact words uttered by the deceased are not available had been r eiterated by the Apex Court in Khem Ima Singh (Supra). It ruled in Ramsai and O rs. (Supra) that oral dying declaration though no doubt is an important piece of evidence, it should be free from all infirmities in order to be acted upon. Th e Apex Court in Ram Kumar (Supra) had noted with disapproval the omission of the factum of dying declaration in the FIR. On a totality of the considerations recited hereinabove, in our 22. comprehension, the impugned judgment and order cannot be sustained. It is thus interfered with. The appeal is allowed. The accused-appellant is ordered to be set at liberty forthwith.