Calcutta High Court
Pearilal Rana Alias Peara And Anr. vs The State on 17 July, 1991
Equivalent citations: 1992CRILJ2644
Author: Monoj Kumar Mukherjee
Bench: Monoj Kumar Mukherjee
JUDGMENT Amulya Kumar Nandi, J.
1. In this case four accused were indicated under Section 302, I.P.C. read with Section 34 of the Penal Code for having committed the murder of one Bablu Hazra alias Chor Bably in furtherance of common intention of all on the 25th of March, 1986 at an unearthly hour of night. The appellants Pearilal Ranar and Babua Das only have been convicted Under Section 302, IPC read with Section 34, IPC.
2. We may state the prosecution case in brief. Victim Bablu and other four accused assembled at a place to commit theft. Victim and the accused fell out. The convict Peari fired at the victim and the other convict struck the victim at his throat with a razor. Remaining two accused Iswarlal and Krishnaram assaulted him. One Biplab Das reported the incident to the police over telephone. The police found the victim lying injured. S.I.S. Moitra recorded the dying declaration of the victim made in presence of other witnesses which was treated as F.I.R. in the case. The victim succumbed to his injuries shortly after he was removed to N.R.S. Hospital. Postmortem was held on the dead body of the deceased.
3. The prosecution has proved that the victim died of a bullet injury and that he had suffered an injury at the throat. Evidence of P.W. 10, Dr. D.K. Debnath is that the injury might have been caused by more than one persons. According to the doctor injuries were ante-mortem and homicidal in nature.
4. There is no eye-witness to the occurrence which took place at an unearthly hour of night. Prosecution seeks to prove the case by a dying declaration said to have been made by the deceased (Ext. 13). P.W. 14, S. Moitra, Sub-Inspector then attached to Entally P.S. had recorded the dying declaration A dying declaration recorded by police does not stand self condemned. Courts generally look to a dying declaration recorded by police with suspicion. It becomes suspicious particularly when police did not requisition the service of a doctor or a Magistrate to record it while he had opportunity to do so. There is as such no legal infirmity to a dying declaration recorded by police and the court may very well act upon it if the same is otherwise acceptable, Munnu Raja v. State of Madhya Pradesh, , Ramawati Devi v. State of Bihar, . In the instant case the condition of the victim was very serious and as a matter of fact he died shortly after he was removed to the hospital. We have noticed that the occurrence took place at an unearthly hour of night. It cannot therefore be said that the service of a doctor or a Magistrate would be readily available to record the statement and that too before he would succumb to his injuries. We therefore find that the officer acted wisely to record the statement of the deceased. He intended to use it as FIR and he has done so. There is no legal bar in treating a dying declaration as FIR. Munnu Raja v. State of M.P. . All the witnesses who are alleged to have heard the dying declaration have become hostile. Therefore the dying declaration does not receive corroboration. As a matter of fact, a truthful dying declaration alone can form the basis of conviction without corroboration, Khushal Rao v. State of Bombay, ; Tapinder Singh v. State of Punjab, ; State of Assam v. Muhim, .
5. In order to determine as to whether the dying declaration is truthful Supreme Court has laid down certain tests in Khushal Rao v. State of Bombay, . They are (1) declaration to a Magistrate is preferable to an oral declaration, (2) opportunity of dying man of observation, (3) capacity to remember remained unimpaired, (4) a consistent statement, (5) an early statement and (6) no tutoring.
6. In the instant case all the tests have been satisfied. We have pointed out that a Magistrate would not be readily available to record the declaration and that the dying declaration recorded by police was acceptable. According to the deceased he and accused came together to commit theft. So they were known to each other. The chance of mistaken identity of the assailant is really remote. The deceased made statement in the same night and there was no opportunity of being tutored. On a casual perusal of the dying declaration it would be found that the victim made a coherent statement. In our opinion the dying declaration is truthful and it can be relied upon without any corroboration.
7. Recording of dying declaration in the form of questions and answers is not a must, Supreme Court, however, opines that it is preferable, Khushal Rao v. State of Bombay, ; Rabi Chandra v. State of Orissa, . In our opinion the dying declaration should be recorded in question and answer form. It has several advantages. Court can judge whether any leading question was put to elicit a certain answer. Privy Council opined that answer to leading question has little value, Alexander Perera v. The King . Secondly, it can be found whether the victim made a coherent statement which will indicate as to whether the victim was in senses. The police officer in his wisdom had recorded it in the form of question and answer.
8. It is evident that the victim suffered an incised wound at his throat. P.W. 10, Dr. Saha opines that such a wound does not interfere with his power of speech. So the victim was in senses and he was capable of making a dying declaration.
9. By his dying declaration the victim implicates one Peara, brother of Birender who lives at Sworemari, and another Babua. We have to examine whether the statement is sufficient to implicate the convicts. Supreme Court lays down in Gopal Singh v. State of Madhya Pradesh, that complete names and/or address of the assailants are necessary. And conviction cannot be based without it unless the dying declaration is otherwise corroborated. It would not be necessary if there would be other evidence to identify the accused. S.I. Moitra committed a serious mistake in not eliciting the particulars of Babua so as to repel all possibility of a mistaken identity. The prosecuting counsel did not elicit from the witnesses either as to whether the accused Peari is the brother of Birender who lives at Sworemari. There is no material to identify the convicts with the assailants. On account of the lapse of the prosecution the convicts are at least entitled to benefit of doubt. We cannot therefore uphold the conviction and sentence of the appellants. We accordingly set aside the judgment, conviction and sentence. The convicts may be set at liberty.
Monoj Kumar Mukherjee, J.
10. I agree.