Gauhati High Court
Masaddar Ali And Anr. vs State Of Assam on 12 December, 1989
Equivalent citations: 1990CRILJ1333
JUDGMENT S. Haque, J.
1. Masaddar Ali and Monohar Ali alias Monai appeal against the judgment and order of conviction under Sections 302/34, I.P.C. passed by the Sessions Judge, Silchar in Sessions Case No. 64/1980 sentencing them to undergo R.I. for life.
2. Jamir Ali sustained injuries in between 7 to 8 p.m. of 10th October, 1976 at village Babicharra. The place of occurrence was at Latu Border not far away from the house of Jamir Ali. The Police Officer Shri N. G. Choudhury of Latu Police Out Post, B.S.F. personnel and the villagers arrived immediately at the place of occurrence and removed injured Jamir Ali to Latu State Dispensary for treatment, but he died there in that night at about 11-35 p.m. as a result of injuries sustained.
3. The prosecution case was that Jamir Ali made dying declaration implicating Masaddar Ali, Makmud Ali, Monohar Ali alias Monai and Maybor Ali as his assailants. All the four accused had been arrested, of which Makmud and Maybor Ali had been discharged, but the appellants faced trial and convicted. The prosecution case rests only on dying declaration.
4. There was no dispute on the fact of death of Jamir Ali in the night of 10-10-1976 as a result of injuries sustained. PW 1 Dr. S. Dutta held post-mortem examination on 11-10-1976 and found the following injuries :
(1) Multiple punctured wounds 0'3 x 0'3 cm x abdominal cavity scattered all over the anterior wall of the abdomen and over the frontal wall of chest with blackening of skin around the wounds and eleven splinters were removed from these punctured wounds of abdominal wall; (2) one incised wound 5 x 2 x 5 cm on the left side of neck; and (3) one incised wound 10 x 2 x 1 cm on the left side of the occiptal region with multiple fractures of the occiptal bone causing, heavy laceration of membrane and the brain substance underneath the fracture bones of the skull. There was profused subdural haemorrhage.
The injuries were found to be antemortem and the doctor opined that the death was due to head injuries. Considering the nature of the head injuries and its effect over the membrane and brain with haemorrhage described above, we accept the opinion of the doctor.
5. A bomb exploded at the place of occurrence and Jamir Ali was lying injured. Multiple punctured wounds over the anterior wall of abdomen and chest with blackening of skin round the wounds were caused due to splinters of bomb blast. The incised wounds over the neck and head appeared to have been caused by blows with sharp cutting weapons.
6. There was no eye witness to the occurrence. PW 2 Jaytun Bibi was the wife of deceased Jamir Ali. She came to the place of occurrence on hearing sound of bomb explosion and found him lying injured. One Police Officer and B.S.F. personnel were present there. She deposed that Jamir Ali told her in presence of the Police Officer and B.S.F. personnel that the two accused together with Mayub Ali and Makmud Ali assaulted him with dao. The Police Officer Shri N. G. Choudhury and the B.S.F. personnel were not examined by the prosecution to corroborate the evidence of Jaytun Bibi on the fact of dying declaration by Jamir Ali at the place of occurrence. Statement of Jaytun Bibi was recorded by the Investigating Officer on 14-10-1976. We have perused her statement in the case diary (Page-7) for the interest of justice and to ascertain the truthfulness of her evidence on the fact of dying declaration before her. She did not state before the Investigating Officer about the fact of Jamir Ali making any statement before her naming the assailants. But she stated that the dead body of Jamir Ali was rescued from the water and taken to hospital. From this, it can be inferred that she found him like a dead man. She introduced the fact of dying declaration for the first time in the trial. Therefore, we cannot rely her on the fact of dying declaration before her at the place of occurrence.
7. On scrutiny of the record and the case diary (Page-58) we find that Sub-Inspector Shri N. G. Choudhury recorded the G.D. entry No. 97 on 10-10-1976 at 9-30 p.m. on the basis of secret information that Jamir Ali was murdered. Thereupon, Shri N. G. Choudhury visited place of occurrence and found injured Jamir Ali lying in serious condition. B.S.F. Jawans were there. Shri N. G. Choudhury recorded statement of Jamir Ali on 10-10-76 before he was removed to hospital as found from the evidence of PW 6 Lal Bahadur Singh, Inspector of Police. According to this witness, the injured Jamir Ali made statement before Shri N. G. Choudhury disclosing the names of assailants. Thus, it was a dying declaration before the Sub-Inspector Shri N. G. Choudhury at the place of occurrence. But that dying declaration was suppressed and Shri N. G. Choudhury was not examined in the trial. It was a very important piece of evidence in order to ascertain whether injured Jamir Ali did actually implicate these two accused-appellants as his assailants immediately after the occurrence at the spot; and suppression of such dying declaration caused serious prejudice to the accused.
8. We find that the investigation started on the basis of the secret information recorded as G.D. entry No. 97. Shri N. G. Choudhury visited the place of occurrence, recorded statement of the injured, removed him to Latu State Dispensary, got the dying declaration recorded by the doctor and then held inquest over the dead body and sent the body to Karimganj Civil Hospital for post-mortem examination. All these were done in the night of 10-10-1976 and next morning. Thereafter, the F.I.R. (Ext. 5) was recorded by Mr. S. Laskar, S.I. of Police of Karimganj Police Station at about 1 p.m. of 11-10-1976 at the instance of Musstt. Jaytun Bibi. It was recorded after much progress of the investigation, and so, this information (Ext. 5) was hit by Sections 161/162, Cr.P.C. relied AIR 1960 SC 391 : (1960 Cri LJ 532).
9. PW 4 Dr. Jamini Roy Talukdar examined injured Jamir Ali at Latu State Dispensary in the night of 10-10-76. He found the patient in semiconscious state. He deposed that he recorded dying declaration of the patient and soon after he succumbed to the injuries sustained by him. Doctor further deposed that exhibit-2 was the dying declaration recorded by him and that exhibit 2(1) was the endorsement made by him over the thumb impression of the maker Jamir Ali and Ext. 2(2) was his signature. This dying declaration is the solitary piece of evidence on which prosecution depends.
10. We have carefully scrutinised the original dying declaration marked exhibit-2 claimed to have been recorded/ written by Dr. Jamini Roy Talukdar. The injured was brought to dispensary at about 11-30 p.m. in serious injured bleeding condition and in semi-conscious state. It was recorded to have stated by Jamir Ali that while returning from bazar at about 7 p.m., co-villagers Masaddar, Makmud, Monai and Maybor assaulted him on the head with sharp weapon. One thumb impression exists below the statement written in Bengali. There was no endorsement on the thumb impression to indicate the identity of the person with that impression. So, the evidence of the doctor that he put endorsement on the thumb impression was not correct. It was written in English that the injured could not speak anything more and became unconscious, his thumb impression was taken and died immediately. According to doctor's evidence and the contents in Ext. 2 show that injured became unconscious while making out the statement and could not speak out anything more and died. So, it was doubtful if the thumb impression was taken while in sense or after death. He was never in full sense, because according to doctor he was in semi-conscious state althrough. The doctor's evidence that he read over the contents of the declaration to the maker after it was written and then took his thumb impression has carried no meaning or value becuase at that time the patient was virtually dying or dead and had no sense whatsoever to understand the recital. There was no endorsement on the body of Ext. 2 to the effect that the statement was readover to the maker. Again, from the state of serious nature of the injuries on the head affecting membrane and brain with subdural haemorrhage sustained at about 7 or 8 p.m., it has become doubtful to believe reasonably if the injured was in conscious state to speak out the statements at 11-30 p.m. These infirmities have weakened the value of the dying declaration.
11. The doctor's signature was exhibit 2(2) on the body of dying declaration'. On scrutiny of the writings / scripts in English and Bengali on the body of the declaration Ext. 2, we find that the writings were not in the hand of the person who put the signature 'J. Roy Talukdar' exhibit 2(2). The ink of the signature and the style of writing it are absolutely distinguishable / different from the writings (English and Bengali) of the document exhibit-2. We find force in the submission of Mr. M. A. Laskar that somebody might have written all the contents of dying declaration (Ext. 2) in presence of doctor Jamini Roy Talukdar and the doctor signed thereunder. There was no indication on the body of exhibit-2 that its contents were read over to the maker nor any endorsement made over the thumb impression to identify the person with that thumb impression. The Public Prosecutor could not explain as to why the writings/scripts of 'dying declaration' are distinguishable/different from the hand writing of the doctor. These infirmities create suspicion in our mind whether the dying declaration was recorded in the hand of doctor or not.
12. We find from the evidence on record that Musstt. Jaytun Bibi (PW 2), Chiramoni Roy (Pharmacist), Shri N. G. Choudhury and others were present at the time of recording the said dying declaration at the dispensary. The possibility of prompting the names of accused either by wife or by N. G. Choudhury at the time of recording dying declaration could not be ruled out. Pharmacist and the Police Officer were not examined in the trial for corroboration on fact of dying declaration. The occurrence took place at night. There was bomb blast on Jamir Ali with simultaneous attack by sharp weapon, so, under such circumstances possibility of recognising assailants by the victim appeared doubtful. There are other infirmities weakening the dying declaration.
13. With these infirmities indicated above in the dying declaration (Ext. 2), we have doubt if it can be accepted as a reliable piece of evidence for sustaining a conviction for murder charge. [AIR 1958 SC 22 : (1958 Cri LJ 106); AIR 1972 SC 1776 : (1972 Cri LJ 828); AIR 1976 SC 1994 : (1976 Cri LJ 1548) and AIR 1983 SC 554 : (1983 Cri LJ 985) are relied on point of dying declaration].
14. A dying declaration stands independently as a good piece of evidence for sustaining a conviction, if it is found to be true and free from infirmity, and corroboration need not be sought for. Necessity for corroboration arises only where the dying declaration presents suspicious features and infirmity. Invariably, it is subjected to strictest scrutiny and the court should be on guard to ensure that declaration is not the result of tutoring, prompting or imagination and that the deceased had the opportunity to observe and identify the assailants and was in a fit state to make the declaration. Where dying declaration is suspicious, it should not be relied upon without strong and convincing corroborative evidence.
15. According to the dying declaration, four (4) assailants Masaddar, Makmud, Monai and Maybor assaulted Jamir Ali on the head with sharp weapons. There was only one incised wound over the head. Two accused Makmud and Maybor have been discharged and the other two have been convicted. The prosecution case in trial was that all the four committed the crime and the dying declaration was the only piece of evidence to prove the charge. It is found from the evidence that the case of the two appellants is not distinguishable or separable from that of the two discharged accused; under such circumstances the entire prosecution is to be discarded (Principles in AIR 1975 SC 1962 : (1975 Cri LJ 1734) and AIR 1976 SC 2042 : (1976 Cri LJ 1574) relied upon).
16. The learned Sessions Judge had failed to appreciate the evidence on facts and law in the case. The order of conviction of the two accused-appellants is not sustainable. They are entitled to acquittal.
17. This appeal is allowed. The impugned judgment and conviction dated 25-4-1981 are set aside. Both the appellants Masaddar Ali and Monohar Ali alias Monai are acquitted of the charges under Sections 302/34, I.P.C. and set at liberty forthwith. If they are on bail, discharged from bail bond.
18. Send down the records immediately.
W.A. Shishak, J.
19. I agree.