High Court · 2012

7. During the course of trial, prosecution examined as many as 11(eleven) w itnesses including the Medical Officer and the Investigating Officer. The statem ents of accused persons U/s 313 CrPC were also recorded. Accused persons denied the charge brought against them. However, on being required, they declined to ad duce any evidence of their own. 8. The learned Trial Court on conclusion of trial and upon hearing the lear ned counsel for the parties held accused/appellants guilty of offence U/s 302 IP C and convicted them there- under and sentenced them to punishment as aforesaid. It is the judgment which has been challenged herein this appeal.

9. Mr. M.Nath, learned counsel appearing for accused/appellants has submitt ed that the judgment, rendered by the learned Trial Court is defective since the dying declaration, relied on by the prosecution is found unsustainable in law f or reasons more than one. But the learned Trial Court ignoring all those defects in the dying declarations came to the conclusion that charge brought against th em on the basis of those declarations stands established. He, therefore, urges t his Court to set aside the judgment of the Trial Court on acquitting accused per sons of the offence they were convicted of and sentenced to punishment as afores aid. Controverting such an argument, advanced from the side of appellants, l 10. earned Public Prosecutor, Assam has submitted that the allegation of dying decla rations are unreliable for there being inconsistent and defective on material po ints is nothing but a myth only. Rather dying declarations, made to the witnesse s, are found to be consistent on all material points and they, in fact, compleme nt one another. He, therefore, urges this court to dismiss this appeal on uphol ding the judgment of the Trial Court. Lacerated injury over the right shoulder joint and near the outer angle

11. We have given our anxious consideration to the arguments, advanced by th e learned counsel for the parties. However, before we could appreciate such an a rguments on merit, we find it necessary to have a brief review of the evidence o n record, and for that purpose, the evidence of Doctor who conducted the autops y on the body of the deceased was first taken up for consideration. 12. PW 3 is Dr. Bhabani Prasad Khaund. He claims to have performed autopsy o n the body of the person aforesaid. According to him, on 15.10.2005, he was post ed at Mangaldoi Civil Hospital. On that day, on requisition, he examined the dea d body of one Deepar Boro, aged about 35 years (male) and his findings are as fo llows: (1) of right eye. (2) (3) (4) Pericardium contains blood. Peritonoum contains full of blood. Heart is empty. Liver and spleen ruptured. All other organs healthy. Injuries were ante mortem in nature. In his opinion, the cause of death is due to harmorrhage and shock as a result o f injuries sustained. Ext-3 was his report. Abrasion over the left cheek. 8th and 9th ribs fractured in the mid-clavicular line on right side. Right lung ruptured. He further opines that the rupture of liver, spleen and fracture of 8th 13. and 9th ribs in the mid clavicularline on right side are individually sufficient to cause death of a person in the ordinary circumstance. On reading the evidenc e of doctor in the light of Ext.3, the post mortem examination report, it would appear clear that the death of the deceased was homicidal in nature and was cau sed by wounds which he sustained on his body on or around 13.10.2005. 14. A perusal of evidence on record further reveals that the deceased report edly made dying declarations before PW 1, PW 2, PW 4, PW 5, PW 7, PW 8, PW 9 and PW 10. On a further perusal of the dying declarations, we have found that PW 7, PW 8, and PW 9 claim that deceased reported them that he was assaulted by accus ed Patal at the place of occurrence on the night in question which occasioned hi s death on 14.10.05. Being so, let us first consider the testimony of PW 7, PW 8 and PW 9.

15. In his evidence, PW 7, Rajib Deka has stated that one day he alon g with Rabindra Rajpur, Mukut Deka and Rabi Gowala were returning home after att ending Vijoy Dashami. When they arrived at the place of occurrence, they heard s ome one crying in pain. They, therefore, came to such place and found the deceas ed there in an injured condition. On being asked as to who assaulted him, the de ceased told them that he was assaulted by Patal Baruah.

16. As they found him to be too weak to speak, they did not ask him more questions and took him to his house nearby. In that connection, he rendered his statement before the Magistrate during the course of investigation which wa s proved as Ext.6. According to him, in course of investigation, police seized a stick from the place of occurrence on the strength of seizure list Ext.1. In hi s cross examination, he admitted that he did not know who brought the injured to the hospital.

17. PW 8, Sri Mukut Deka, in his evidence has stated that while returning ho me from Vijoy Dashmi on the night in question along with others, he met the dece ased Deepar Boro at the place of occurrence. He came to such place hearing him c rying in pain. When they enquired him as to who had assaulted him, he told that the accused Patal had assaulted him and left him there in an injured condition. Witness Rabindra Rajpur, Mukut Deka and Rabi Gowala were also with him at that t ime. 18. They informed the matter to the Gaonburah of the concerned village. Next day, the injured was taken to hospital but he died on the way. According to him , during the course of investigation, police seized 3 pieces of bamboos on the s trength of seizure list Ext.7. In his cross examination, he confirmed that on be ing injured deceased told them that the accused Patal had assaulted him at the p lace aforesaid on the night in question. 19. PW 9, Sri Dadhiram Basumatary, a village Gaonburah deposes that one day at about 10 pm some boys told him that Deepar Boro was lying at the place of o ccurrence in an injured condition. He then advised the boys to shift him to hosp ital. He also came to know from them that they already took the victim to his ho use. The boys were Mukut Deka, Rajib Deka and Rabi Gowala. He came to know from the wife of deceased that the later was assaulted and injured by the accused Pat al at the place of occurrence on the night of 13.10.05.

20. However, on perusal of the record, we have found that PW 1, PW 2, PW 4, PW 5, PW 6, and PW 10 rendered a version regarding assault on the dece ased on the night aforesaid which slightly differs from the account of incident given by PW 7, PW 8 and PW 9. In his evidence, PW 1, Sri Gahin Boro, has stated that one day, Rajib Deka, Mukut Deka and Rabindra Rajpur brought Deepar Boro (th e deceased) to his house in an injured condition. When he was enquired, he told them accused Patal and Budhi injured him a 21. nd they assaulted him on the road near his own house. They saw some swelling wou nds on the face of deceased. They also saw blood coming out from his mouth. Next day, he was taken to Mangaldoi hospital. However, he succumbed to the injuries after being brought to hospital. In that connection, he lodged an FIR with the p olice which was proved as Ext.1. The suggestion that the deceased did not tell h im that accused Patal and Budhi assaulted him was denied by PW 1. 22. PW 2 is Smti Tapeswari Boro, wife of the deceased. According to her, one day Rajib, Mukut, Rabindra Rajput and Rabi brought her husband home. He was in an injured condition but he was in a position to talk to them. When he was asked as to how he got injured, he told them Patal and Budhi assaulted him near their house for which he sustained wounds on his body. 23. She saw swelling wounds on face and neck of her husband .She tri ed to bring a doctor to their house on that night itself but she could not do so for which her husband was taken to Mangaldoi hospital next day . But he succu mbed to his injuries in the hospital. The suggestion that her husband did not te ll her that accused Patal and Budhi were his assailants was denied by PW 2. 24. PW 4, Sri Nibaran Das, PW 5, Sri Dhani Ram Basumatary, PW 6, Sri Uday Ku mar Kachari and P.W.10, Sri Rabindra Gowala also depose that on being inquired, the deceased told them that accused Patal and Budhi had assaulted him near their house on the night in question. In his cross examination, PW 4 stated that he d id not know who took the injured Deepar Boro to hospital.

25. On the other hand, suggestion to the PW 5 that the deceased did not m ake any statement implicating accused persons as being the assailants of the dec eased was denied by PW. 5 and PW 10. In his cross examination, PW 6 too confirme d that deceased was in a position to speak when he made statement in the nature of dying declaration to them. 26. The evidence rendered by the PWs aforesaid very clearly demonstrate that on the night in question the deceased sustained various wounds on his body whic h occasioned his death next day. The evidence of doctor too affirmed the fact th at death of Deepar Boro was caused by the anti mortem wounds which were detected by the doctor while he conducted the autopsy on the body aforesaid.

27. But on our further perusal of the record, we have found that nobody saw the person(s) responsible for committing the crime under scrutiny. The prosecuti on, therefore, heavily relies on the dying declarations which deceased reportedl y made to PW 1 and PW 2 and PW 4 to PW 8 and PW 10. Before putting the above dyi ng declarations to scrutiny, we need to know the law which holds the field in qu estion. 28. The law relating to dying declaration is well settled. However, without mu ltiplying those decisions, we can gainfully peruse the decision of Hon’ble Supre me Court rendered in the case of Salim Gulab Pathan v. State of Maharashtra rep orted in (2012) 6 SCC 606 which held as follows:- (cid:28)18. In Atbir v. Govt. (NCT of Delhi) after an elaborate consideration of severa l decisions of this Court, the following propositions have been laid down with r egard to the admissibility of a dying declaration: (i) Dying declaration can be the sole basis of conviction if it inspires full co nfidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of turoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, i t can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule of law that the dying declaratio n cannot form the sole basis of conviction unless it is corroborated. The rule r equiring corroboration is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon witho ut corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was u nconscious never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is brief statement, it is not be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and consciou s state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free f rom any effort to induce the deceased to make a false statement and if it is coh erent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. (cid:29)

29. In this connection, we may also peruse the decision of the Hon’ble Supre me Court in the case of Bhajju Alias Karan Singh Vs State of Madhya Pradesh, r eported in (2012) 4 SCC 327 wherein it was held as follows: Once the court is satisfied that the declaration was true and voluntary, it undo ubtedly can base its conviction on the dying declaration, without requiring any further corroboration. It cannot be laid down as an absolute rule of law that th e dying declaration cannot form the sole basis of conviction unless it is corrob orated by other evidence. 30. Now, keeping the above principles in mind, let us see whether prosecutio n could pass those tests. We have already found that PWs, particularly, PWs 1 an d 2 and PW 4 to PW 8 and PW 10 categorically claim that the deceased made a st atement in the nature of dying declarations on the night of 13.10.05. We have al so found that there is irrefutable evidence to show that deceased was mentally f it when he made the aforesaid statements. 31. Being so, we have no hesitation in holding that the deceased made the dyi ng declarations on the night of 13.10.2005 and also on 14.10.2005. However, befo re we could proceed further we need to know whether the dying declarations which the deceased made to the witnesses aforesaid are truthful. In this context, it may be stated that we have already found that there are two sets of dying declar ations. 32. The first set comes through PW 7, PW 8 and PW 9. The other set of dying de clarations has emerged from the testimonies of PW 1, PW 2, PW 4, PW 5, PW 6 and PW 10. While PW 7, PW 8 and PW 9 claim that the deceased named only accused Pata l as being his assailant , other PWs, aforesaid, claims that deceased named not only Patal as being his assailant but also implicated the accused Budhi Baruah in the crime in question. Now, the question is which set of dying declarations is truthful? 33. On perusal of the evidence on record, we have found that first men who m et the deceased at the place of occurrence were PW. 1, PW 7,PW 8, and PW 10 and out of those PWs, PW 7 and PW 8 quite categorically have stated that when they met the deceased at the place of occurrence, he uttered the name of Patal Baruah only, and none else. The evidence of PW 7 and PW 8 finds more corroboration of PW 9 who happens to be Gaonburah of the village concerned. 34. In his evidence, PW 9 has stated that on being enquired the wife of the dec eased, he came to know from her that accused Patal inflicted wounds on the decea sed on the night aforesaid. The evidence rendered by PW 7, PW 8 and PW 9 draws f urther corroboration from the averments, rendered in Ext.1, FIR, which was lodge d by PW 1 on 14.10.2005. It may be stated that Ext. 1 was lodged by PW 1 after t he death of Deepar Boro and it clearly reveals that only accused Patal had assau lted the deceased on the night of 13.10.05. 35. But then, we have also found that PW1, PW2, PW 4 to PW 6 and PW 10 have cl aimed that assailant of deceased on the night aforesaid was not accused Patal al one but his father Budhi Baruah too since both of them took part in the assault on the deceased at the place of occurrence on the night of 13th October,2005. Ho wever, the claim of PW1, PW2, and PW4 to PW6 and PW10 that Budhi Baruah too took part in assaulting the deceased cannot be accepted without a grain of salt. 36. We have found that all the aforesaid PWs except PW 10 met the decease d several hours after the alleged incident. On the other hand, PW7, PW8 and so a lso PW10 met the deceased at the place of occurrence itself and that too, little after the aforesaid incident. The fact that they they took the victim to his ho use moments after the alleged incident and the fact that they reported the matte r to the Gaonbura concerned make their evidence more and more reliable. Thus, th e version rendered by PW7 and PW8, in our opinion, carries more weight than the version, rendered by other PWs. 37. Here, it is worth nothing that PW1, who lodged the FIR after the dea th of deceased on 14th October, 2005, named only one person in his FIR and perso n, so named, was, accused Patal Baruah. The missing of the name of accused Budhi Baruah in the FIR, aforesaid which was lodged long after the alleged incident s peaks loud and clear that there is every possibility of such an accused being ro ped in consequence of subsequent deliberations among the persons whose decisio ns mattered most. 38. We have also found that some of the PWs, such as, PWs 1 and 2 are rel atives of deceased as well. Some other witnesses are the neighbors of deceased. In the above scenario, it can be presumed that at the behest of family members o f the deceased, some the witnesses may try to give a new twist to the case under consideration, once the investigation was underway. Being so, we are the consid ered view that the prosecution tires to improve his case by implicating the accu sed Budhi Baruah with the crime aforesaid. 39. In the face of the foregoing discussion, we are to hold that the dying declaration which the deceased made to the PW 7, PW 8 and PW 9 implica ting only the accused Patal as being the assailant of the deceased on the night aforesaid is found to be truthful. Same is also held to be voluntary as well. On the other hand, the dying declarations, made to other PWs, are found to be trut hful in part and such truthful part, coupled with averment made in Ext. 1, doubl y affirms that the dying declarations, reproduced by PW7, PW8 and PW9 are really truthful and voluntary.

40. We have found that as per the dying declaration, the deceased was subjected to a series of blows. He was also assaulted with stick as well beside s being kicked by the accused person and all those blows and kicks were inflicte d all over his body. Evidence of Doctor reveals that deceased sustained several wounds and they were distributed all over the body of the deceased .According to Doctor, such wounds were caused by blunt object.

41. Evidence of doctor, particularly his evidence on the nature of i njuries, site thereof etc. corroborated more and more the dying declarations on material particulars and it, in turn, lends more credence to the dying declarati ons, particularly dying declarations , reproduced by PW 7, PW 8 and PW 9. As the dying declarations, reproduced by PW 7, PW 8 and PW 9 are found to be totally t ruthful and voluntary, and as, those dying declarations do not implicate the acc used Budhi Baruah, we have no hesitation in holding that charge against accused Budhi Baruah has not been proved beyond all reasonable doubts and as such, he de serves an acquittal from the offence, he was charged with.. 42 But as stated above, the dying declarations reproduced by P W 7, PW 8 and PW 9 clearly show that the accused Patal Baruah did assault Deepar Boro on the night of 13 October, 2005 inflicting very many serious wounds on hi s person which occasioned his death next day. When one considers wounds which the deceased was subjected to, there cannot be any escape from the conclusion th at accused assaulted the deceased with intention of causing his death. Being so, in our considered opinion, accused Shri Patal Baruah is guilty of offence U/s.3 Consequently, the appeal is partly allowed and the judgment of 02 IPC. He stands convicted accordingly. 43. In the result, the accused Shri Budhi Baruah is acquitted of off ence U/s 302 IPC and he is set at liberty forthwith, if he is not required in an y other case. However, conviction of the accused Patal Baruah U/s. 302 IPC is m aintained and sentence, imposed on him for such offence, in view of materials on record, is not interfered with. 44. the Trial Court stands modified accordingly. 45 In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in ap propriate cases. Therefore, for the sake of brevity and in the light of our disc ussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with re gard to the victim compensation as provided by Section 357(A) Cr.P.C., we make t he following directions:- 1. As an interim measure an amount of Rs.50,000/- shall be deposited by the Stat e Government with the District Legal Services Authority of Mangaldoi District wi thin a period of two months from this date. The District Legal Services Authorit y, on receipt of the said money, shall make an enquiry to ascertain as to whethe r, there is dependent(s), who suffered loss and injury as a result of death of t he deceased and if such dependant(s) or legal representative(s) need any rehabil itation.

2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabi litation, then the District Legal Service Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as m ay be prescribed by the scheme to be prepared by the State Government. 3. It is made clear that if the District Legal Services Authority, after due enq uiry, arrives at the findings that there is no dependent(s) or that the dependan t(s) of the deceased/victim does not required any rehabilitation, then the Distr ict Legal Services Authority, shall refund the said amount of Rs.50,000/- withou t delay, in favour of the State Government. 4. A copy of this judgment be furnished to the 1) Chief Secretary to the Govt. o f Assam, 2) Secretary, State Legal Services Authority, Assam and 3) Secretary, D istrict Legal Services Authority, Mangaldoi for doing needful as indicated a bove.