Gauhati High Court
Ananda Mura vs The State Of Assam on 26 June, 2020
Equivalent citations: AIRONLINE 2020 GAU 249
Author: Manish Choudhury
Bench: Manash Ranjan Pathak, Manish Choudhury
Page No.# 1/16
GAHC010028802015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 133/2015
1:ANANDA MURA
VERSUS
1:THE STATE OF ASSAM
2:SMTI. RAIMONI MURA
W/O-LT. RAM MURA
R/O-BAHADUR T.E. MURA LINE
P.S.-BORDUBI
DIST.-TINSUKIA
ASSAM
Advocate for the Petitioner : AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
Page No.# 2/16 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE MANISH CHOUDHURY Date of Hearing : 23.01.2019, 19.06.2020.
Date of Judgment : 26.06.2020.
JUDGMENT AND ORDER (CAV)
(Manish Choudhury, J.)
1. The instant Jail Appeal is preferred against the Judgment and Order dated
07.12.2015 passed by learned Sessions Judge, Tinsukia in Sessions Case No. 49(T)/2014, whereby, the accused-appellant, Ananda Mura has been convicted under Sections 302 of the Indian Penal Code (IPC) and has been sentenced to undergo rigorous imprisonment for life with fine of Rs. 1,000/- (Rupees one thousand) only, in default of payment of fine, to suffer further rigorous imprisonment for 6 (six) months.
2. The prosecution case, in brief, is that one Raimoni Mura, wife of late Ram Mura, resident of Mura Line, Bahadur Tea Estate, on 14.08.2013 lodged an Ejahar before the Officer-in-Charge of Bordubi Police Station alleging, inter-alia, that since the night of 12.08.2013 her daughter i.e. the prosecutrix was found missing from her house and at about 4-00 a.m. of 13.08.2013, she returned home with her clothes in an disorderly state. The prosecutrix disclosed that in the night of 12.08.2013, the accused Ananda Mura, a resident of the same Mura Line, after committing rape, had administered poison like substance to her. Knowing about the same, though the prosecutrix was immediately taken to Tinsukia Civil Hospital for medical treatment she was referred to the Assam Medical College Hospital (AMCH) at Dibrugarh for better treatment. However at about 9-00 a.m. on 13.08.2013, the prosecutrix died at AMCH, Dibrugarh while undergoing treatment.
3. On receipt of the aforesaid Ejahar, the Officer-in-Charge of Bordubi Police Station, Tinsukia registered it as Bordubi Police Station Case No. 74/2013 under Sections 376/302 Indian Penal Code (IPC) and entrusted the investigation of the case to one Surjya Kanta Das, Sub-Inspector of Police (PW.12), posted at Bordubi Police Station. A corresponding G.R. Case Page No.# 3/16 was also registered being G.R. Case No. 1295/2013.
4. In the course of investigation, the Investigating Officer (I.O.) visited the place of occurrence at Bahadur Tea Estate and got the statements of the witnesses recorded under Section 161 Code of Criminal Procedure (CrPC). The I.O. drew the sketch map of the place of occurrence and after holding inquest over the dead body of the prosecutrix, sent the dead body for post-mortem examination at the AMCH, Dibrugarh. The post-mortem examination was conducted on 13.08.2013. On completion of investigation, finding a prima facie case, the I.O on 30.10.2013 submitted the charge-sheet under Section 173, CrPC being Charge-Sheet No. 51/2013 (Exhibit-10) under Sections 376/302 IPC against the accused appellant.
5. On appearance of the accused before the learned Sub-Divisional Judicial Magistrate (Sadar), Tinsukia, the copies under Section 207 CrPC were furnished to him by the said Magistrate at Tinsukia. As the offences under Sections 376/302 IPC are exclusively triable by the Court of Sessions, learned Sub-Divisional Judicial Magistrate (S), Tinsukia by an order dated 17.02.2014 passed under Section 209 CrPC committed the case record of said G.R. Case No. 1295/2013 to the Court of learned Sessions Judge, Tinsukia.
6. Pursuant to the said commitment, on receipt of the case record of said G.R. Case No. 1295/2013, the same was re-registered as Sessions Case No. 49(T)/2014 before the Court of learned Sessions Judge, Tinsukia. Upon hearing the learned Public Prosecutor and the learned defence counsel, the learned Sessions Judge, Tinsukia on 09.06.2014 framed charges under Section 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and under Section 302 IPC against the accused, which were read over and explained to him to which the accused pleaded not guilty and claimed to be tried.
7. During the course of the trial, 12 (twelve) witnesses including the I.O. were examined by the prosecution side, but the defence did not adduce any evidence. However, the defence cross-examined the prosecution witnesses. On completion of recording the evidence of prosecution witnesses, the accused was examined under Section 313 CrPC bringing before him the circumstances appearing against him in the evidence and in the said examination, the accused denied the same as false and claimed innocence. On conclusion of the trial, the learned Sessions Judge, Tinsukia had come to a finding that the prosecution had Page No.# 4/16 been able to prove the case against the accused under Section 302 IPC, but had failed to prove any case against him under Section 4 of the POCSO Act beyond reasonable doubt. Accordingly, the learned Sessions Judge, Tinsukia convicted him under Section 302 IPC and sentenced him as above. Aggrieved by the said Judgment and Order, the accused-appellant has preferred the instant appeal from Jail.
8. We have heard Ms. Purnima Baruah Bordoloi, learned Amicus Curiae for the accused- appellant and Mr. Makhan Phukan, learned Additional Public Prosecutor, Assam for the State.
9. Ms. Bordoloi, learned Amicus Curiae appearing for the appellant, Ananda Mura had submitted that there were contradictions and inconsistencies in the case of the prosecution and the prosecution had failed to bring home the charge under Section 302IPC against the accused-appellant. She submitted that the statement of PW.3, Priya Munda was recorded under Section 164CrPC after 9 (nine) days of the alleged incident and the said statement could not be a basis to bring home the charge against the accused. She further argued that the investigation of the case ensued in reference to a general diary entry registered prior to the institution of the Ejahar and the Ejahar was subsequent of the said General Diary Entry. She further submitted that alleged oral dying declaration made by the prosecutrix could not be considered and there were discrepancies as regards the time of occurrence. In order to supplement her submissions she placed reliance upon the decision of the Hon'ble Supreme Court in the case of Sidharth and Others -Vs- State of Bihar reported in (2005) 12 SCC 545.
10. On the other hand, Mr. Phukan, learned Additional Public Prosecutor submitted that there is no need to interfere with the Judgment and Order of the learned Trial Court below. He submitted that the minor inconsistencies and discrepancies including discrepancies as to the time of incident could not be a ground to disbelieve the statements of the witnesses if they were otherwise found to be natural and trustworthy witnesses. The posterior conduct of the accused also was a relevant factor. He further submitted that there was apparent motive on the part of the accused to commit the crime. The evidence of the prosecution witnesses were reliable and there is no good reason to disbelieve the oral dying declaration made by the prosecutrix.
11. In order to appreciate the submissions of the parties, it is necessary for us to Page No.# 5/16 scrutinize the evidence on record.
12. PW.1, Raimoni Munda was the mother of the prosecutrix. PW.1 stated that she knew the accused as he resided near their house. She deposed that on 12.08.2013, the prosecutrix had gone to the house of her maternal uncle viz. Ashman Mura. She did not return home in that night. PW. 1 stated that she could not go out in search of her daughter that night as there were only two persons i.e. herself and her daughter in their house. At about 4-00 a.m. in the next morning, her daughter came back to the house in a serious condition with torn clothes. When asked, the prosecutrix told PW.1 that the accused Ananda Mura after ruining her, had administered medicine to her. Thereafter, PW. 1 took the prosecutrix to the Civil Hospital, Tinsukia and therefrom, the prosecutrix was referred and taken to Assam Medical College Hospital, Dibrugarh. In the Assam Medical College Hospital, the prosecutrix succumbed to death at about 8-00 a.m. and froth was found to have come out of her mouth. Regarding the death, a report was given to Dibrugarh police and thereafter, the informant gave information at the Bordubi Police Station. She further deposed that at the relevant time of occurrence, the age of her daughter was about 13 (thirteen) years. One Naga Munda accompanied her to the Civil Hospital, Tinsukia and he was also with her at the Assam Medical College Hospital. In her cross-examination, she denied the suggestion that she did not state before the I.O. that on being asked, her daughter told her that Ananda had ruined the prosecutrix to and also administered medicine. She further deposed that at the time of reporting, her daughter was in the house of her neighbour, Lakhi Moni Mura (PW. 2) and therefrom, they took the prosecutrix to the Civil Hospital, Tinsukia. She also denied the suggestion to the effect that the prosecutrix was in an unconscious state when she met her.
13. PW. 2, Lakhi Mura stated that she knew the prosecutrix as she was her neighbour. She also knew the accused Ananda Mura. On the day of the incident, the prosecutrix had gone to the house of her maternal uncle located in the same garden but the prosecutrix did not return in the night. It was at about 4-00 a.m. in the next morning, the prosecutrix came to her house in a limping condition. On being asked, the prosecutrix told that she was subjected to rape by the accused Ananda Mura and he also administered some medicine to her. Then, PW. 2 called the mother of the prosecutrix and took the prosecutrix in a cart to the Garden Hospital initially, wherefrom she was referred to the Civil Hospital, Tinsukia. The prosecutrix Page No.# 6/16 was then taken to the Civil Hospital by her mother with the help of others. Thereafter, PW. 2 went to her duty and in the evening, she saw the dead body of the prosecutrix and Ananda Mura was found absconding. In her cross-examination, she revealed that there was a love affair between the accused and the prosecutrix. A meeting in the village regarding the issue of love affair was also held 2/3 months prior to the occurrence and both were prohibited from contacting each other. This witness also declined the suggestion that on being asked, the prosecutrix did not tell her that the prosecutrix was raped by the accused Ananda Mura and was administered medicine to her by him.
14. PW. 3, Priya Munda knew the prosecutrix as well as the accused as both of them were from the same Line. At about 4-00 a.m. on 13.08.2013, PW. 3 saw the prosecutrix coming in a limping condition with torn clothes and her condition was so bad to miss anyone's attention. To reach her house, the prosecutrix had to cross the house of Lakhi Mura (PW.2) and PW.3 then followed the prosecutrix. PW. 3 found that the prosecutrix could not reach her house and fell down in the house of PW.2. As PW. 2 came out of her house, the prosecutrix narrated the incident to PW. 2 which she also heard. The prosecutrix told that she would not survive as she was raped by the accused Ananda and thereafter, she was administered medicine. Then froth was found to have come out of the mouth of the prosecutrix and though she tried to utter some words but she failed. When the prosecutrix was narrating the incident Raimoni (PW.1) was also present there and she was called by PW. 2. Thereafter, the prosecutrix was shifted in a cart to the hospital. At about 3-00 p.m., PW. 3 came to know that the prosecutrix succumbed to death at about 8-00 a.m. at the Assam Medical College Hospital. Thereafter, search was made for the accused but they could not find him as he absconded. PW. 3 also stated that her statement was recorded by the Magistrate and he proved the said statement as Exhibit-! and also her signatures therein. During her cross-examination, she declined the suggestion that the prosecutrix did not tell her that the prosecutrix was raped by the accused Ananda Mura and thereafter, she was administered medicine.
15. PW. 4, Lago Mura is a resident of Mura Line and he knew both the prosecutrix and the accused. He deposed that one day in the morning at about 6-00 a.m. he saw the prosecutrix limping in the house of Lakhi Mura (PW. 2) while he was going to the field. The prosecutrix had consumed medicine. Then he took her to the Civil Hospital and from there, he took her Page No.# 7/16 to Dibrugarh Medical. He stated that the prosecutrix died at Assam Medical College Hospital, Dibrugarh. When he stated that he did not ask anything to the prosecutrix and he was not interrogated by the police, the prosecution, at that stage, declared him hostile. Thereafter, the prosecution side made a prayer to allow cross-examining this witness. On being so allowed, the prosecution side cross-examined him. In such cross-examination, PW. 4 declined the suggestion that he stated before the police that on 13.08.2013 at 1-00 p.m., when he went to the house of Smti Raimoni Mura hearing hulla, he came to know that her daughter (prosecutrix), aged 13 years, was missing since 12.08.2013. He also denied about knowing the accused committing rape upon the prosecutrix somewhere and thereafter, administering her poison due to which she became senseless. The defence side declined to cross-examine this witness.
16. PW. 5, Pintu Mura is a resident of the same Mura Line and he knew both the prosecutrix and the accused. He deposed that there was a meeting in the village which both the prosecutrix and the accused attended and in the said meeting, accused submitted documents stating that he would not maintain a relation with the prosecutrix in future. The said document was seized vide a Seizure list (Exhibit-2) wherein PW. 5 subscribed his signature. The defence did not cross-examine PW. 5.
17. PW. 6, Monu Boro is also a resident of Mura Line and he knew the prosecutrix and the accused. He deposed that in one morning at about 5-00 a.m., he came to know that the prosecutrix had come to her house in a limping condition and hearing hulla, he reached their house and from the prosecutrix, he came to know that she was raped by the accused and thereafter, she was administered poison by the accused. Thereafter, they took the prosecutrix on a cart to the Garden Hospital, wherefrom she was taken to the Civil Hospital, Tinsukia and thereafter, to the Dibrugarh Medical Hospital where she died. He further deposed that one month prior to her death, a meeting was convened in the Garden in respect of the love affair of the accused with the prosecutrix. One document was prepared in the meeting wherein the accused had signed. The said document was seized by police vide a Seizure List (Exhibit-2) where he signed. In his cross-examination, PW. 6 stated that he went to the house of Lakhi Mura (PW.2) at about 5-00 a.m. He stated that when he met the prosecutrix on the relevant day, the prosecutrix could utter the name of Ananda in a broken voice.
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18. PW. 7, Dr. Hemanta Kumar Mahanta is a Professor & the Head of the Department of Forensic Medicine at the Assam Medical College Hospital, Dibrugarh. On 13.08.2013 at about 2-00 p.m., he performed post-mortem examination on the date body of the prosecutrix. The body was brought and identified by Constable Surjya Mahanta and Laga Munda. On examination, his observations were as under:-
"External Appearance:- A female dead body of average built, swarthy complexion, wearing a skirt and a top. Eyes and mouth closed. Bluish discoloration of fingers seen. Rigor mortis present all over the body. Postmortem hyposthesis present on the back and was not fixed. The body was cold externally and warm internally. No external injury seen. Internally all visceras found healthy but congested. Stomach was congested with multiple submucosal haemorrhage at places and contains approximately 150 mi. of dirty white liquid with kerosene like smell.
Small intestine congested and contains gluey substance. Other organs were healthy. Opinion:- On the basis of postmortem findings, I am of the opinion that the death was due to organophosphorous compound poisoning. Approximate time since death was 2 to 6 hours. "
PW. 7 proved Exhibit-3, the post mortem examination report of the deceased. He stated that the dead body was accompanied with the inquest report (Exhibit-4), command certificate (Exhibit-S), dead body forwarding report (Exhibit-6) and dead body challan (Exhibit-7). In his cross-examination, PW. 7 stated that when kerosene was mixed with liquid pesticide like flit and the smell on the same compound would be similar to that with kerosene oil. In summer, rigor mortis starts to appear approximately 1 to 2 hours from death and it takes about 6 hours to develop fully but dependent upon the physical structure of the body and season and it takes 24 to 48 hours to completely pass off. The result of organophosphorous poisoning seems to starts within half an hour of consumption, starting with vomiting, irritation of throat, burning sensation and depending individual resistance and the person may become unconscious.
19. PW. 8, Rangila Mura is also a resident of Mura Line, Bahadur Tea Estate. She knew the prosecutrix who was about 13 years. She deposed that about 2 years ago, in an evening she heard that the prosecutrix was missing. Then she and her mother searched for the prosecutrix but they could not trace her out. In the morning at about 4-00 a.m., she having heard hue and cry of the prosecutrix, went out and saw that froth was coming out of the mouth of the prosecutrix. On being asked, the prosecutrix told her that the accused Page No.# 9/16 committed rape and thereafter, administered poison to her. PW. 8 also deposed that the accused had fled away from the house and they searched for him but they could not find him. The prosecutrix was initially taken to the Garden Hospital and thereafter, to the Civil Hospital, Tinsukia. Thereafter, the prosecutrix was taken to Assam Medical College Hospital, Dibrugarh and on the same day, she died at the said Hospital at Dibrugarh. During her cross- examination, PW. 8 stated that the houses of the accused, the prosecutrix and PW. 2 were located in the same Line. She stated that the prosecutrix was not her relative. This witness has also denied the suggestion that the prosecutrix did not tell before her that she was raped and administered poison by the accused person.
20. PW. 9, Jugni Orang is also a resident of Mura Line, Bahadur Tea Estate. She knew both the accused and the prosecutrix. She stated that on the next day of the occurrence, she heard from the people of the Line that the accused person committed rape upon the prosecutrix and thereafter, administered poison.
21. PW. 10, Ram Mura is also a resident of Mura Line, Bahadur Tea Estate. He also knew both the accused and the prosecutrix. He is a night Chowkidar and his duties starts from 5-00 p.m. to 5-00 a.m. One day in the year, 2013 when he was coming from his duty at about 5-00 a.m. he heard hue and cry in the house of the prosecutrix. Then he asked Dina Mura and Amal Mura, uncle of the prosecutrix as to what happened and they told him that the prosecutrix consumed poison and thereafter, she was taken to hospital. The prosecutrix died in the hospital and her dead body was kept on the courtyard of the accused person. He heard from the people gathered near the house of the accused person and thereafter, she was administered poison by the accused person. He did not find the accused in his house at that time. In his cross-examination, he stated that the mother of the accused told him that the accused was in his brother's house when he enquired about his whereabout from her.
22. PW. 11, Singra Mura is also a resident of Mura Line, Bahadur tea Estate. He knew both the accused and the prosecutrix. One day at about 5.30 a.m., he went to the house of the prosecutrix seeing other people running towards there and saw the prosecutrix lying on the floor with froth coming out of her mouth. He heard from the people that the prosecutrix consumed poison. Thereafter, the prosecution was taken to the hospital and after her death; her dead body was brought back. The defence did not cross-examine this witness.
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23. PW. 12, Surjya Kanta Das was the Investigating Officer of the case. He stated that on 13.08.2013 when he was posted at Bordubi Police Station the Officer-in-Charge of the Police Station received the information over phone from Ram Mura (PW.10), V.D.P. President stating that there was chaos in respect of the death a lady in Mura Line of Bahadur Tea Estate. On receipt of the said information, the Officer-in-Charge, Bordubi Police Station made a General Diary Entry No. 220/2013 and entrusted him to investigate the case. He then proceeded to Bahadur Tea Estate with a police party and on reaching there, he found the dead body of the Prosecutrix lying in the Courtyard of the accused. People who gathered there, wanted to bury the dead body at that place and they were pacified by him. On enquiry, he came to know that the accused and the deceased had a love affair since long and in that respect, there was a village meeting too held on 31.03.2013. In the said meeting, a decision was taken and the same was reduced to writing which document he seized vide Exhibit-2. At the place of occurrence itself, He received the written Ejahar (Exhibit-S) from PW. 1 and he forwarded the same to the Officer-in-Charge, Bordubi Police Station with his endorsement. When he was returning from the place of occurrence he found the accused near the factory of Bahadur Tea Estate and he arrested the accused. The I.O. visited the place of occurrence on 14.08.2013 and drew the sketch map (Exhibit-9). On 21.08.2013, the I.O. forwarded PWs. 2 and 3 to the Court for recording their statements under Section 164 Code of Criminal Procedure, and their statements were, accordingly, recorded by the Magistrate on 21.08.2013 itself. The I.O. also recorded statements of remaining witnesses under Section 161 CrPC and collected the inquest report as well as the post mortem examination report of the deceased. On being transferred thereafter, he handed over the Case Diary to the Officer-in-Charge. Later on, S.l. Prabin Baruah had submitted the Charge Sheet (Exhibit-10) on the basis of investigation done by him. In his cross-examination, the I.O. had stated that he started the investigation on the basis of the General Diary Entry but the copy of the General Diary Entry was not submitted alongwith the charge sheet. He stated that PW. 1 did not state before him that the Prosecutrix told her that Ananda had ruined her and administered medicine to her.
24. On a close reading of the above evidence, it is evident that the Prosecutrix, P.Ws 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11 and the accused were inhabitants of the same locality i.e. Mura Line, Bahadur Tea Estate. No evidence have been brought on record by the defence, even by Page No.# 11/16 way of suggestions, there was any kind of enmity between PWs. 2, 3, 4, 5, 6, 8, 9, 10 and 11 with the accused so as to implicate the accused in a false manner. None of these witnesses is relative of either the Prosecutrix or the accused. There was no reason for them to depose anything other than the real facts.
25. From the evidence of PWs. 1, 2, 3, 4, 6, 8, 10 and 11, it is established that the Prosecutrix was found returning to her house in a very bad condition in the early morning hours of 13.08.2013. There were certain minor discrepancies in mentioning the time about such return of the Prosecutrix. Raimoni Munda (PW. 1), Lakhi Mura (PW. 2), Priya Munda (PW.
3) and Rangila Mura (PW. 8) stated that the said incident took place at about 4-00 a.m. whereas Manu Gora (PW. 6), and Ram Mura (PW. 10) stated that the Prosecutrix was seen at about 5-00 a.m. Lago Mura (PW. 4) stated that the time as 6-00 a.m. whereas Singra Mura mentioned 5-30 a.m. as a time. Such minor discrepancies as regards mentioning of time cannot be considered to be any consequence as the difference is only of 2 (two) hours and villagers generally suggest approximate time.
26. The presence of these witnesses at the place occurrence in the early hours of morning cannot be disbelieved in view of the fact that in the Tea Garden areas people generally, Tea Garden employees in particular, rise early for their duties. PWs. 1, 2, 4, 5, 6, 8, 10 and 11 are Garden employees whereas PW. 3 is a teacher.
27. It is in the testimonies of PWs. 1, 2, 3 and 8 that the Prosecutrix had reached the house of PW. 2 in the morning hours of 13.08.2013 in a limping condition. Having found the Prosecutrix in such condition they asked her and they were told by the Prosecutrix that she was subjected to rape by the accused and was, thereafter, administered medicine by the accused. After that, she was taken to the Garden Hospital initially and thereafter, was taken to the Civil Hospital, Tinsukia. From the Civil Hospital, Tinsukia, the Prosecutrix was referred to and taken to the Assam Medical College Hospital, Dibrugarh where she succumbed to death at about 8-00 a.m. It is evident from the testimonies of PWs. 2, 3 and 6 that the Prosecutrix was taken in a cart to the Garden Hospital. Lago Mura @ Laga Munda (PW. 4) stated that he took the Prosecutrix to the Civil Hospital, Tinsukia and from there, to the Assam Medical College Hospital, Dibrugarh which fact is corroborated by PW. 7 who conducted the post mortem as well as from the post mortem examination report (Exhibit-3).
Page No.# 12/16 From the testimony of PW.1, i.e. Raimoni Munda, it transpires that one Naga Munda accompanied her to the Civil Hospital, Tinsukia and he was also with her at the Assam Medical College Hospital, Dibrugarh. The person who identified the dead body at the Assam Medical College Hospital at the time of inquest was one Loga Munda, as could be seen from the inquest report (Exhibit-4). Thus the minor discrepancies in the name Lago Mura, Laga Munda vis-a-vis Naga Munda appears to be attributable to either wrong pronunciation or incorrect spelling mistake but the same is of no benefit, in our considered view, to the accused.
28. Situated thus, the question for consideration is whether the oral dying declaration made by the Prosecutrix to the witnesses, PWs. 1, 2, 3, and 4 is to be believed or disbelieved, in view of the fact that one of the basis of finding the accused guilty of the charge is reliance placed on the oral dying declaration by the trial Court. There is no legal bar for the information given by a deceased to be treated as a dying declaration. The prosecution has led evidence that the deceased made a dying declaration in the course of which she stated that the accused Ananda Mura had raped her and thereafter, had administered medicine on her. It has been argued that no reliance can be placed upon the dying declaration of the deceased because one part of the dying declaration is not proved and in that view of the matter, the whole of the dying declaration shall be rejected.
29. In Babula and others -Vs- State of M.P., reported in (2003) 12 SCC 490, the Hon'ble Supreme Court has observed:-
"7...... Section 32 of the Indian Evidence AcC 1872 (in short "the Evidence Act} deals with dying declaration. A person who is facing imminent death with even a shadow of continuing in this world practically non-existence of evil motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is ''a man will not meet his maker with a lie in his mouth" (nemo moriturus praesumitur mentiri). Mathew Arnold said" truth sits on the lips of a dying man' The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. (See R. V. Woodcock2.)...."
30. In Godhu and Another -Vs- State of Rajasthan, reported in (1975) 3 SCC 241, the Page No.# 13/16 Hon'ble Supreme Court has observed:-
"16. ......We are also unable to subscribe to the view that if a part of the dying declaration has not been proved to be correct, it must necessarily result in the rejection of the whole of the dying declaration. The rejection of a part of the dying declaration would put the Court on the guard and induce it to apply a rule of caution. There may be cases wherein the part of the dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. In such an event the Court would well be justified in rejecting the whole of the dying declaration. There may, however, be other cases wherein the two parts of a dying declaration may be severable and the correctness of one part does not depend upon the correctness of the other part. In the last mentioned cases the court would not normally act upon a part of the dying declaration, the other part of which has not been found to be true, unless the part relied upon is corroborated in material particulars by the other evidence on record. If such other evidence shows that part of the dying declaration relied upon is correct and trustworthy the court can act upon that part of the dying declaration despite the fact that another part of the dying declaration has not been proved to be correct. "
31. From the evidence of autopsy doctor PW. 7, when he performed the post mortem examination of the dead body of the Prosecutrix he found the stomach congested with multiple submucosal haemorrhages at places and contained approximately 150 ml of dirty white liquid with kerosene like smell. The doctor, in his opinion, clearly stated that post mortem findings were suggestive of death due to organ phosphorus poisoning. A combined reading of all the attending facts along with the oral dying declaration and the findings of the autopsy doctor makes us to reach a conclusion that the Prosecutrix died of poisoning and the death of the Prosecutrix was due to administration of poison by other person and not due to self-consumption. Had it been due to self consumption, the Prosecutrix would not have made an attempt to reach her house. It is only when administration of poison like substance is made by any other person without the consent of the person administered the victim makes a effort to save himself by reaching a safe place like his house or a hospital. The Prosecutrix, in the instant case, appeared to have made such an effort. The doctor further opined that the result of organ phosphorus poising usually starts within half an hour of consumption.
32. The prosecution side, in the instant case, appeared to have collected materials during the course of investigation only with regard to the aspect of death of the Prosecutrix. The aspect of sexual assault was not pursued in any serious manner. In that view of the matter, it cannot be said that one part of the dying declaration has not been proved to be correct and Page No.# 14/16 the argument of rejection of the whole of the dying declaration is thus, not acceptable.
33. Coming to the conduct of the accused, it is seen that he is a resident of the same Mura Line, Bahadur Tea Estate like PWs. 1, 2, 3, 4, 5, 6, 8, 9, 10 and 11. The incident had happened in the early morning but there was no indication of whereabouts of the accused during the course of the entire day. There was no explanation, not to speak of a plausible explanation, from his side during the examination made under Section 313 CrPC. PW. 2 who is a natural and independent witness had found the accused to have absconded. Similarly, PW.3 who is also a natural and independent witness deposed that when the accused was searched they did not find him as he was absconding. Similar was the evidence of PW. 8 who is another natural and independent witness. The defence has failed to discredit these witnesses in any manner whatsoever during their cross-examination and did not even suggest anything in that regard. The accused has also a duty to furnish an explanation regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 CrPC is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law, as has been held in Phula Singh -Vs State of Himachal Pradesh, reported in (2014) 4 SCC 9.
34. The learned Court below in arriving at the finding of guilt of the accused had relied upon the decisions of Hon'ble Supreme Court in Ranjit Singh -Vs- State of Punjab, (2006) 13 SCC 130 and Laxman -Vs- State of Maharashtra, (2002) 6 SCC 710 amongst others. In placing reliance upon the evidence of PWs. 1, 2, 3 and 8 as regards that part of the dying declaration relating to administration of poison we concur with the learned Court below in placing reliance upon the decision of the Hon'ble Supreme Court in Pothakamuri Srinivasulu -Vs- State of A.P., reported in (2002) 6 SCC 399 wherein it has been observed thus:-
"7.... We find no reason to disbelieve the dying declaration made by the deceased to the witnesses PWs 1, 2 and 3. They are all residents of the same village and are natural witnesses to the dying declaration made by the deceased. No reason is assigned, nor even suggested to any of the three witnesses, as to why at all any of them would tell a lie Page No.# 15/16 and attribute falsely a dying declaration to the deceased implicating the accused- appellant. Though each of the three witnesses has been cross-examined but there is nothing brought out in their statements to shake their veracity. "
35. It has emerged from the evidence on record that accused had a love affair with the Prosecutrix earlier. PW. 2 had categorically deposed that there was a love affair between the accused and the Prosecutrix. There was a meeting held in the village regarding the issue 2/3 months priors to the occurrence. In the said meeting, a decision was arrived to the effect that the accused and the Prosecutrix would not contract each other thenceforth. PW. 6 corroborated the said evidence as regards previous love affair and he deposed that the same meeting was in respect of the love from the side of the accused and it was decided in the meeting that accused would not harass the Prosecutrix in the future. That decision taken in the meeting was reduced into writing and a document was prepared wherein the accused signed. That part of the evidence could not be discredited by the defence. In his examination, the accused had admitted that he had a love affair with the Prosecutrix. It can be seen that there is no denial to the fact that the accused was debarred from contacting the Prosecutrix even if he had a love affair with her earlier. Thus, it cannot be said that the accused did not have any motive to cause the crime. It was the accused who had been debarred and he had a duty to offer the explanation. His posterior conduct of abscondence without any explanation is a relevant fact and is inconsistent with the plea of innocence of the accused but consistent with the hypothesis of the crime and involvement of the accused in the commission of the crime. It becomes an additional link in the chain of the circumstances would make it complete.
36. Considering the evidence on record, in its entirety, in our considered view, that part of the statement of the Prosecutrix in her dying declaration that the accused had administered her medicine is acceptable in view of the fact that the Prosecutrix had died of organophosphorous poisoning which fact has been corroborated by PW. 7, the doctor who conducted the post mortem examination of the deceased on 13.08.2013 after her death on that day. We, therefore, find no difficulty in accepting the part of dying declaration of the Prosecutrix that the accused had administered her medicine which turned out to be organ phosphorous poison. If a person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to Page No.# 16/16 cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid, then he is held to have committed the offence of murder, as defined under Section 300 IPC. The law is well settled that a conviction can be founded solely on the basis of dying declaration if the same inspires confidence.
37. Having regard to the law laid down in the above decisions as well as the evidence on record like we, therefore, concur with the findings of the Trial Court that the accused appellant was the perpetrator of the crime. For these reasons, we find the instant appeal bereft of any merit and it is, accordingly, dismissed.
38. We mention our appreciation for the services rendered by Ms. Purnima Sarma Bordoloi, learned Amicus Curiae and direct that an amount of Rs. 7,500/- be paid to her as remuneration by the State Legal Services Authority, Assam Guwahati.
39. Registry shall furnish a free copy of this Judgment to the accused appellant through the Superintendent of District Jail, Tinsukia, Assam for his necessary use.
40. Registry shall return the records of the trial Court to the Court of learned Sessions Judge, Tinsukia with a copy of this Judgment.
JUDGE JUDGE Comparing Assistant