High Court
Case Details
Crl.A. 121/2011 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY HON’BLE MR. JUSTICE L.S JAMIR (Jamir, J) Criminal Appeal 121/11 and Criminal Appeal 118/11 are both directed against the judgment and order dated 10/06/2011 passed by the learned Addl. Sessions Judge (FTC) Sonitpur, Tezpur in Sessions case No. 93/2006 under Sections 457/302/34 IP C whereby all the three accused were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to u ndergo rigorous imprisonment for another six months for offence under Section 30 4/34 of IPC. The, accused Saiful Islam and Faruk Ali were also sentenced to und ergo RI for another 5 years and to pay a fine of Rs. 1,000/- and in default to u ndergo Simple Imprisonment for one month for the offence under Section 457/34 of IPC. It was also directed that both the sentences will run concurrently. We therefore, propose to dispose of the aforesaid two criminal appeals by this c ommon judgment and order. 2. rma learned Addl. Public Prosecutor for the State of Assam. Heard Mr. A Rasid learned counsel for the appellant as well as Mr. H. Sa 3. The case of the prosecution is that on 14/08/2004, the paternal uncle of the deceased namely, Mr. Abdul Mazid filed an FIR before the Officer-In-Charge, Sootea Police Station, Sonitpur alleging that around 2.00 a.m. on 13/08/2004 s ome unknown miscreants had entered the house of his nephew Md. Muzibur Rahman, son of Md. Jainal Abedin by digging a Sindhi (hole), and caused serious injury t o him by hacking him in his head with a sharp weapon while he was sleeping. The miscreants also took a VIP suit case from the house and left it a little distanc e away from the house. In the FIR it was also stated that Md. Mazibur was kept a t Bishwanath Chariali Hospital for treatment. 4. 89/2004 under Section 457/326/379 IPC was registered.
Legal Reasoning
On the basis of the FIR dated 14/08/2004 Sootea Police Station Case no. 5. On completion of investigation, charge-sheet under Section 457/326/304/3 4 of IPC was submitted. Charge was framed by the learned Addl. Session Judge (FT C) Sonitpur against the accused Saiful Islam and Md Faruk Ali under Section 457/ 302/34 of IPC and against Msst. Sultana under Section 302/34 IPC, to which all t he accused pleaded not guilty. 6. During trial, prosecution examined 20 witnesses including the medical Of ficer and the Investigating Officer. The accused persons were also examined unde r Section 313 Cr.PC. 7. PW- 1 is the informant and also the uncle of the deceased, Mazibur Rahma n. He deposed that around 2.00 a.m on 13.08.2004 hearing a hue and cry at the ho use of his elder brother Jainal Abedin he went there and saw the back door of th e house open. He saw Mazibur lying on the bed sustaining cut injury in his head. Mazibur’s wife Sultana taking her baby in her arms was standing there. He also saw a sign of digging Sindhi (a hole made under the wall of a dwelling house) by a burglar or other person seen in one corner of the room. He also stated that J ainal, Nirmal along with other people from the village unitedly gave the informa tion to Sootia Police Station on that night itself and they admitted Mazibur to Bishwanath Chariali Hospital. He also stated that he lodged the FIR on the next day. When the police came for investigation, the police found a joint photo of Sultana and Saiful. He further deposed that Mazibur’s condition was serious and he was shifted to Gauhati Medical College Hospital. He stated that on 15/08/2004 they shifted him to Gauhati Medical College Hospital and there he talked interm ittently. He also stated that on 02/08/2004 Mazibur told him and his family mem bers that Saiful had assaulted him and that he had to get Rs. 25,000/- from Saif ul. In cross-examination he stated that his house is one and half furlong aw ay from the house of the deceased Mazibur. He also stated that Mazibur regained his sense about 2 hours after he was admitted to the hospital and that he lodged the Ejahar after returning from the hospital. He further stated that when Mazib ur regained his sense, they informed the police. He also stated that the doctor did not say anything. It was further deposed by PW- 1 that he questioned Mazibur but he kept on crying. And on 14/09/2004 Mazibur slipped into coma and the doct or advised them to take to GMCH. He stated that before that it seemed that he ha d some sense and on 15th they took Mazibur to GMCH. He also stated that in the G MCH, Mazibur came round at 3.00 p.m on the 20th of that month and when Mazibur c ame round they informed the police as well as doctor but they did not come. He s tated that after regaining sense he had told them that Saiful had assaulted him. He also stated that a pool of blood was there on the mat. No other article was found stained with blood. All the articles in the house were intact. One corner of the mosquito net was being cut. 8. PW- 2 is the father of the deceased. In his deposition he stated that he heard commotion raised by his daughter-in-law (Sultana) and he woke up and went then. There he saw two boxes lying in the house of Mazibur and on entering the house he saw Mazibur stained with blood and lying on the bed bearing cut injury in his head. His daughter-in-law told that people came, cut Mazibur and left. He also saw digging Sindhi in the outside of the house. Inside the house the Sindh i was slightly dug, but no one can enter the house through that sindhi. He along with PW- 1 and other people took Mazibur to Bishwanath Chariali Hospital, after informing the Sootia Police Station. On examination of Mazibur by the doctor, they were advised to take him to Guwaha ti. The following day they took him to Guwahati and although Mazibur regained se nses time to time, he did not return to a fully conscious state. However, after one week Mazibur came to on the 20th and during that time he told that Saiful b rought some other people along and assaulted him. He also stated that at that t ime some other people namely Kalam, Samsul, Anowar Motleb were present and after a few days Mazibur died. In cross-examination PW- 2 stated that when he went there his daughter in law was sitting on the bed taking her nephew in her lap and that the mother and the baby did not have blood stain although the son (baby) was sleeping in th e bed near his father. He also stated that the door of the house was open and th e mat was spread on the bed. The pillow and the mat were stained with blood and the mosquito net was being cut in one corner. He further stated that after the o ccurrence many people came and his wife also went along with him. He stated that at the time of sun rise they reached Bishwanath Chariali and the doctor stitche d the injury and advised them to take him to GMCH, but he did not go to Guwahat i. He further stated that Mazibur was not in a state to speak and further stated that after a week he and the family members went to Guwahati to see him. 9. PW- 3 is the mother of the deceased. She stated that hearing her daughte r-in-law crying at Mazibur’s house she went there and saw Mazibur smeared with b lood lying on the bed, bearing injury in his head. Her daughter-in-law was sitti ng on the bed where Mazibur was lying. She also stated that from the courtyard s ide a sindhi was dug into the room but nobody could enter the room through that. She stated that Mazibur’s brothers took him to Bishwanath Chariali Hospital and thereafter he was taken to GMCH for treatment. She also stated that she went to Guwahati to see him and at that time Mazibur died after few days. In cross-examination she stated that hearing the scream she came first, her husband also came and thereafter Mazibur’s own brother came. She took a torc h in her hand and it was dark at that time. She also stated that there were pill ow, bed sheet and mosquito net in Mazibur’s bed and the mosquito net was being c ut. The mosquito net was white and stained with blood and the police seized the mosquito net. She further stated that there was blood in the bed and in the pill ow. Further in her cros-examination, PW- 3 stated that she went to Bishwanath Ch ariali hospital and at that time Mazibur was not in a state to speak. She also s tated that she along with others including her husband went to Guwahati and when they reached the GMCH they all went near Mazibur. At that time he regained his sense. He could speak and at that time that he told that Saiful had assaulted h im. 10. PW- 4 is the uncle of Mazibur. In his deposition he stated that after 2. 00 a.m. on Friday night he was informed by his bhatija that someone had cut Mazi bur in his head. They went to his house and saw him lying on the bed sustaining injury in his head. The brothers took Mazibur to hospital at Bishwanath Charial i and they informed Sootia Police Station on the way. The next day he was kept i n Bishwanath Chariali hospital and on the day after that day he was shifted to G MCH. He also stated that Saiful had visiting terms with Mazibul as they did bus iness together. He stated that when he went to see Mazibur at the GMCH, he told that Saiful had assaulted him. When asked, Saiful told them and called Saiful that Mazibur was out of head. In cross-examination he stated that the bed was in the western side and all the articles in the room were in order and nothing was lying in disorder. H e also stated that at that night itself they went to the thana to inform the mot her and then went to Bishwanath Chariali hospital. He stated that at that time M azibur was not speaking. He also stated when Mazibur was taken to Guwahati from the Bishwanath Chariali via Tezpur he did not meet Saiful. He also stated that when he saw Mazibur at the hospital he was crying but he did not speak. He also denied the suggestion that he did not tell the police about Mazibur telling hi m and his paternal aunts that Saiful had assaulted him. He denied the suggestio n that Mazibur was not in a state of speaking when he visited him in the hospita l. He stated that when Mazibur told him about the occurrence, Anowar Islam, Sams ul Islam, Kalam Hussain and his paternal aunt and other persons were there along with him. He further stated that the doctor and nurse were not present there at that time. He also stated that he did not go to inform the doctor that Mazibur was able to speak and he further deposed that Mazibur did not give any statement before the doctor, nurse and police. PW- 5 is the brother of the deceased. He stated that he was in his hous 11. e when at about 2.30 a.m in the night Sultana shouted (cid:28)marise marise (cid:29). His fathe r and he came out running and there saw Mazibur lying on the bed bearing injury in his head. Mazibur’s wife Sultana was sitting on the bed crying and he also sa w an attachØ case was lying outside the house and a hole was dug inside the hous e. They took Mazibur at Bishwanath Chariali hospital and admitted him. After kee ping him in that hospital for a day, they took him to Mirdha hospital at Tezpur and thereafter they took him to GMCH. He deposed that around5.00 p.m. on 20/08 h is father Jainal Abedin, Omar Ali, Samsul, Abdul Kalam, Motaleb and Om Kulchand went to see Mazibur at Guwahati Medical. That day his brother Mazibur recovered a bit. When they asked he told them that it was Saiful who has assaulted him an d PW 5 further stated that he was present when Mazibur said this. Mazibur furthe r told that Sultana and Faruk were also involved. And after a few days he died in the Medical College Hospital. In cross-examination he stated that they took his elder brother to the h ospital at 4 a.m on that very night and before that they went to Sootia Police Station. He also deposed that PW lodged an ejahar to the police station after c alling in the daroga. The daroga wrote a paper to take the injured to the Biswan ath Chariali hospital. They reached the hospital in the morning. He stated that till then his brother was able to speak but he became senseless again. And at th at time he did not tell as to who had committed the occurrence. From Bishwanath Chariali they took him to Tezpur and shifted him to the GMCH. On 20/08 Samsul Is lam with his father and others also went there. And it was about 5.00 p.m when t hey reached there. He stated that at that time he along with Mazid master and Sa iful were with Mazibur. When their father and others went there Mazibur regaine d his sense. They informed the doctor about this, but when the doctor came Saifu l did not tell him about the occurrence. He also deposed that they did not infor m the police as they were in the hospital. 12. PW- 6 is the neighbour. He stated that on 20/08/2005 he went to see Mazi bur at the GMCH. He found Mazibur sleeping on the bed and when his companion Mut alib asked him as to who had assaulted him, Mazibur replied that Saiful had assa ulted him. In cross-examination PW- 6 stated that he talked to the brothers of Mazi bur and five minutes after their arrival, Mazibur regained his sense. At that t ime no doctor or nurse was there and they found him in conscious state after tha t also. He also stated that they did not inform the doctor or nurse about Mazibu r regaining sense and stated that when Mazibur made his statement they were all present there. PW- 6 however denied the suggestion that he did not tell the poli ce about Mazibur’s saying that Saiful had assaulted him. 13. PW- 7 is the co-villager. In his cross-examination he stated that he al ong with others went to Guwahati and rached the Guwahati Medical in the afternoo n. They saw Matibur, Mazid and the accused Saiful with Mazibur. He stated that Mazibur was sleeping and after a little while he regained his sense and talked. Then showing Saiful he told them that Saiful had assaulted him. In cross-examination he stated that some 10 minutes after their arrival Mazibur woke up. At that time they were all sitting in the floor of the room an d also stated that when Mazibur was taken to hospital Saiful was attending him c ontinuously. He also denied the suggestion that he did not tell the police about Mazibur telling them in the hospital that the accused Saiful had assaulted him. It was further stated by him that they did not go to inform the doctor, nurse o r the police about Mazibur regaining sense. 14. PW- 8 stated that on 20th day of the month he along with others went to Guwhati to see Mazibur. At about 3.30 p.m they reached at the medical college. They found Mazibur’s elder brother, accused Saiful and another man near Mazibur and Mazibur was sleeping. When he regained his sense he told all of them that Sa iful had assaulted him. In cross-examination he stated that he went to see Mazibur when he was taken to Bishwanath Bihwanath Chariali Hospital. He stated that they on 20th the y started to Guwahati to see Mazibur. He was nearby when Mazibur told about Saif ul and that the others also heard. He also stated that he neither spoke in a lo w voice nor in a high voice. It was further stated that they did not inform what Mazibur said to the doctor and the police of the Guwahati Medical and he himsel f did not tell anything to the police. 15. PW- 9 is the uncle of Sultana (wife of deceased). He stated that on 20th he with about 12 to 14 persons including Mazibur’s family members went to the M edical to see him. There he saw Mazibur sleeping. They all stood around Mazibur ’s bed to see him and when his parents called Mazibur he opened his eyes. Mutale b was patting him on his head when he asked as to who had assaulted him. Then M azibur told that it was Saiful who had committed the occurrence. He also deposed that when he asked if Sultana had committed the crime he replied in the negativ e. In cross-examination he stated that Mazibur’s father and mother went nea r to him and when the people went to see him Mazibur started to talk. He stated that he did not hear what he said as he was a little away from him and over hear d the later part of the statement. 16. PW- 10 is the sister-in-law of the deceased. She stated that after 2.00 a.m in the night of 13/08/2004 Mazibur’s own brother Matibur came shouting to th eir house and told that thief had cut Mazibur. They immediate went there and saw a pillow lying at the door way and a V.I.P suitcase lying at a little distance. On entering the house they saw Mazibur lying on the bed bearing injury in the b ack of his head and he was smeared with blood. She also stated that Mazibur’s wi fe Sultana was sitting on the floor taking her son and was crying. When asked, she told him that she knew nothing. She stated that all the members of Mazibur’ s family gathered there and took Mazibur to Bishwanath Chariali Hospital for tre atment and the doctor did not allow Mazibur to talk. Thereafter, Mazibur was ta ken to Guwahati. On 20.08.2004 they went to Guwahati to see Mazibur at the Medic al when they went near Mazibur he regained his sense and spoke and while he was talking, he showing Saiful, told that it was Saiful who had cut him. She also s tated that he said this before all of them. In cross-examination she stated that he was not in a state to speak from the time when he was taken to Bishwanath Chariali. She stated that he was kept in the upstairs of Medical College Hospital and he did not regain his senses b efore their arrival.She stated that Mazibur’s parents were crying and the other persons who had gone on 20.08.2004 were in the room and she did not notice if a ny other person were there. They all talk with Mazibur and he said that Saiful h ad cut him. 17. PW- 11 is the seizure witness when the police seized the V.I.P suitcase, a wrist watch and blood stained mosquito net from Mazibur’s bed. 18. PW- 12 is also a seizure witness when the police seized the articles. 19. PW- 13 is the friend and business partner of the deceased of Mazibur. He stated that the following morning around 10.30 a.m. he heard that Mazibur had b een murdered. He went to his house but he did not find him there. Then he came t o know that he was at Bishwanath Chariali and in the next day he went to Bishwa nath Chariali Hospital and saw him there. He was lying bearing injury in his hea d and when he asked him he did not reply. The prosecution declared PW- 13 hostil e. He denied the suggestion that he told the police that when he had asked, Maz ibur had told him in a very weak voice to ask his Bhabi and saying so he became unconscious. In cross-examination he stated that when he called him he opened the eye s but he did not say anything and he also stated that he did not tell the polic e about Mazibur’s asking, (cid:28)ask your Bhabi (cid:29) PW- 14 is the brother of the deceased. He stated that around 2 a.m he he 20. ard an outcry raised by his elder brother’s wife and other people, he along wit h his parents and elder brother Matiur went to Mazibur’s house. Upon reaching th ere he saw Mazibur lying on the bed with bleeding injury in his head and a blood soaked through the pillow. He saw a small ditch ditch was dug in front of the house and also saw 2 (two) VIP suitcase lying there. His elder brother and other s took him to Bishwanath Chariali Hospital after informing the police station. A fter about two days he was taken to Tezpur but from there he was referred to Guw ahati Medical College Hospital. He deposed that on 20/08/2004 he along with his parents and other relatives went to Guwahati to see his elder brother. They rea ched there at 4.00 p.m. and he saw his elder brother speaking a little and in p resence of all of them showing Ismail (Sic) elder brother asked them to send him away and told that it was he who assaulted him. In cross-examination he stated that Mazibur was on 3rd floor of the medi cal college hospital and including his elder brother there 4 other patients in t hat room and Mazibur spoke a little later after their arrival. He told that Saif ul had assaulted him asked them to take him away. He also stated that he did not inform the doctor, nurse or the police about Mazibur speaking. He also stated that he did not see Mazibur speaking to the doctor. 21. PW- 15 is also a seizure witness. 22. PW- 16 is the Officer-In-Charge of Sootia Police Station. He stated that on 14.08.2004 upon receiving the ejahar he had entrusted ASI Pradip Das with the charge of preliminary investigation. On completion of preliminary investigat ion case diary was handed over to him and he interrogated the witnesses in the case diary namely, Nurma Khatoon, Umme Kulsum, Md. Habibur Rahman, Md. Kazirul H aque, Abdul Mutaleb, Anmowar Hussain, Abdul Kalam and Md Samsul Islam. During in vestigation he could know that on 03/09/2004 injured Mazibur died while he was u nder treatment in GMCH and therefore he made a prayer before the Court to includ e Section 302 of IPC against the accused. In the mean time he was transferred an d accordingly he handed over the case diary to S.I Diben Bora. In cross-examination he stated that on receiving available information a bout the occurrence he had send the injured to Bishwanath Chariali Hospital for treatment. He also stated that he did not meet the injured and so he does not k now about the condition of the injured. He also stated that he did not receive any report whether any step was being taken or not to record dying declaration o f the injured. 23. PW- 17 is the Police Officer who was entrusted with the preliminary inve stigation. In his statement he stated that on 14/08/2004 he was on duty as ASI i n Sotia Police Station. On that day PW. 1 came to the Police Station taking alo ng Mazibur in a injured state and informed that digging a sindhi thief had enter ed injured’s house by hacking him with dao. He therefore send the injured to Bis hwanath Chariali Hospital along with police for treatment. Thereafter the Offic er-In-Charge of the Police went to the place of occurrence and gave him the cha rge of preliminary investigation. He had inspected the place of occurrence and i n the course of inspection he went to the complainant’s house and recovered VIP suitcase lying outside but closed to the house. He seized the wrist watch and the said two suitcase. 24. f the deceased and he found the following: PW- 18 is the medical officer, who taking post mortem on the dead body o On external examination:- The deceased was found naked. Build average. C omplexion dark. Rigor mortis present in both upper and lower limbs. Thread found in waist and right arm. Eyes and mouth found closed. Buttock and sacral area sh ows a bedsore ulceration of size 15X15 cm with gramulation tissue formation at t he floor of margins and surrounded by redish inflammatory areas. Injury:- 1) Stitched wound of size 8 cm length over the anterior aspect of right parietal scalp. On removal of the stitches the would was found to be h ealed in the inner aspect and formation of granulation tissue in the outer aspec t. 2) under injury no. 1, the right parietal bone in the middle por tion in an area of 6X6 cm found found missing with knibbling appearance at the m argins (surgical removal) through this msing part the underlying brain is expose d showing a extradural haematoma at the part. (cid:28)Cranium and spinal canal Scalp as describe under injury no. 1 whole right parietal scalp found contused o n reflection. Skull as described. Vertebrae healthy. Membrane as described. Brain and spinal cord. Laceration of parietal lobe of brain on right side with i ntracerebral haemorrhage. Spinal cord not examined. Left scapular area of thorax shows a bedsre ulceration of size 6X6 cm with granu lation tissue at the floor of margins and by reddish inflammatory area. Ribs an d cartilages healthy. Pleurae healthy. Pale Larynx and trachere. Mucosa healthy filled with froth. Both lungs and heard found healthy. Abdomen :- Walls, peritoneum, mouth, pharynx and oesophagus found health. Stomach :- Mucosa healthy and stomach found empty. Small intestine and its contents: Healthy and it contained digested food material. Large intestine healthy contained decal matter. Rest of the organs of the abdome n found healthy. Injury No. 2 shows surgical knibbling appearance. No fiacture detected. Opinion :- Cause of death is coma resulting from the injuries sustained in the h ead. All injuries were ante mortem and caused by blunt impact. Approximate time since death 16 to 24 hours. (cid:29) In cross-examination he denied the suggestion that after receiving such type of injures chances of loss of consciousness is nil. 25. PW- 19 is the ASI of Police at GMCH police outpost. He stated that on 03/09/2004 a report was received from the Neuro-Surgery Ward of GNCH of the dece ased person. He made an entry in the GD to that effect and the name of the dece ased was Mazibur. He stated that the inquest of the deceased was held upon its i dentification done by Md. Matiur Rahman. Thereafter, upon preparation of relevan t papers on the deceased, the dead body was send for the autopsy to the police a nd after collecting the autopsy report he had sent it along with the dead body challan, inquest report and forwarded it to the concerned Police station, Sootia . In cross-examination he stated that before his death, the deceased had n ot made any statement before them. 26. e from the PW- 16 and who had submitted the charge-sheet. PW- 20 is the Officer-In-Charge in Sootia Police Station, who took charg 27.
Legal Reasoning
In support of their case the learned counsel for the appellant had place reliance on:- (2011) 14 SCC, 577 Roopram Vs State of Madhya Pradesh at paragraph 6 and (a) 7. (b) d 33 (c) h 12, 19 and 20 and (d) ph 6 and 14. (2011) 11 SCC 754 (SK Yusuf Vs State of West Bengal) at paragraph 32 an (2011) 13 SCC 125 ( Waikhom Yaima Singh Vs State of Manipur) at paragrap (2010) 3 SCC 675 (Khillan and Anr Vs State of Madhya Pradesh) at paragra 28. This Court while appreciating the evidence of the prosecution it is noti ced that all the PW’s except PWs 16, 17, 18, 19 and 20 the PWs 16, 17, 18, 19 an d 20 had uniformly testified that the deceased while he was admitted in the Guwa hati Medical College Hospital had come to his sense and stated that the accused Saiful had assaulted him and thereafter lost consciousness and died a few days later. The PWs 16, 17, 18, 19 and 20 are the Investigating Officers, Police Offi cers and Medical Officer 29. The first question that arises before us is whether the evidence of the prosecution witness in so far as the dying declaration of the deceased Mazibur Rahman is reliable. It is in the evidence of PW 4 that Mazibur has stated that Saiful has as saulted him. In cross-examination he also deposed that Mazibur was not capable to speak. He also stated that when he went to see Mazibur at the hospital he wa s crying but did not to speak. Further, in cross-examination, he denied that M azbur was not in a state to speak when he visited him in the hospital and he als o stated that the doctor and the nurse were not present there at that time. The deposition of PW 4 clearly shows that there is contradiction in his statement. 30. It is also relevant to say that PW 5, in his cross-examination has state d that they have informed the doctor and the doctor came, but Saiful did not tel l him about the occurrence. The statement of PW 5 is a completely different stat ement compared to the other PWs in so far as whether the doctor was present whe n the deceased has stated that Saiful had assaulted him. The statement of PWs ap pears before this Court to be purely tutored and not reliable. All the other PWs had stated that they did not inform the doctor, the nurses or the police about the deceased coming back to sense. Another aspect which cannot escape notice of this Court is that whether the de ceased Mazibur could have seen the assailant hitting him in the middle of the n ight when everything was dark. 31. It is to be noted that none of the PW’s had bothered to call the doctor or the nurse when Mazibur is said to have repaired conscious for a short time, during which he stated that Saiful had assaulted him. It is only natural that w hen a serious patient repairs regain seriously the doctor or the nurse is normal ly always called. Another stumbling block for the prosecution is that they have also failed to exa mine the doctor attending Mazibur at GMCH. Therefore there is no medical evidenc e to suggest that the deceased would have regained consciousness from coma for a short while, or whether he was in a fit condition to make such a statement. We are in agreement with the learned counsel for the appellant and we a 32. lso humbly subscribe to the observations of the Hon’ble Supreme Court in the cas e of Roop Ram and Anr (Supra) at paragraph 6 and 7 which reads as under:- (cid:28)6. As would be apparent the only evidence against the appellants i s the dying declaration made PW. 1, PW 5 and PW 11. The question that arises is whether the deceased was in a position to make a statement and whether such a s tatement had in fact been made. We have examined the prosecution story and find it to be highly unnatural. As per the evidence on record, Kewal, PW 2 had seen Gajraj lying in an injured condition in the nallah and he had thereafter called the other witnesses from their residence. As per the prosecution story Gajraj h ad been unconscious at the time when he had been found but he became conscious f or a very shory time on having some water, made his declaration and then again b ecame unconscious and ultimately died while he remained in that condition. To ou r mind, this story lacks credibility. It is also relevant htat PW 11 Babulal ils the brother-in-law of Roop Ram, appellant, as his sister Sahodrara Bai was marr ied to him. It has come in defence that Babylal was annoyed with Roop Ram as his wife was not being permitted to return home. PWs 1 and 5 are father and son and are the closest relatives of the deceased. 7. Some corroboration for the dying declaration could perhaps have bee foun d in the medical evidence. Dr. Nayazi and Dr Satpathi who had examined the dead body were discrepant with regard to the time-lag between the causing of the inj uries and the time of death. This makes it difficult to believe that Gajraj had been in a condition to make his statement. We are, therefore, of the opinion tha t the appellants are entitled to be given the benefit of doubt. (cid:29) 33. so observed at paragraph 19 and 20 as under:- The Hon’ble Supreme Court in the case of Waikhom Yaima Singh (Supra) al (cid:28)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 the said dying declaration, the time of which is not fixed by the prosecution. T he 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) 34. had observed thus:- In the case of of Sk Yusuf (Supra) the Hon’ble Supreme Court at para 32 (cid:28)32. Undoubtedly, conviction can be based solely on circumstantial evide nce. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecut ion case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established shou ld be consistent only with the hypothesis of the guilt of the accused and they s hould not be explainable on any other hypothesis except that the accused is guil ty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in a ll human probability that the act must have been done by the accused. (Vide Shar ad Birdhichand Sarda v. State of Maharashtra8, Krishnan v. State9 and Wakkar v. State of U.P.10 (cid:29) 35. Under the facts and circumstances of the case and on considering all the materials available on record, we are of the considered view that the judgment dated 10/06/2011 passed by the leanred Addl. Session Judge (FTC) in Session Cas e No. 93/2006 cannot be sustained. All the three accused namely, Saiful Islam, F aruk Ali and Sultana Hasina are given the benefit of doubt. 36. Accordingly, judgement dated 10/06/2011 passed by the learned Addl. Sess ion Judge FTC Sonitpur convicting and sentencing all the three accused are set a side and quashed. The accused Saiful Islam, Faruk Ali and Sultana Hasina shall b e set at liberty forthwith unless wanted for some other case. 37. of the judgment and order of this Court. Registry is directed to send down the LCR’s forthwith along with a copy 38. The two Criminal Appeals are accordingly allowed.