Gauhati High Court
CRL.A(J)/80/2018 on 12 February, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/8
GAHC010203212018
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.A.(J) No. 80/2018
MD. ABDUL SALAM
S/O. LT. SARAFAT ALI,
R/O. ROWARPUR, P.S. MURAJHAR, NAGAON (HOJAI), ASSAM.
...............Appellant
-Versus-
THE STATE OF ASSAM
...................Respondent
Advocates :
For the Accused-Appellant : Ms. B. Sarma, Amicus Curiae
For the Respondent : Ms. B. Bhuyan, Additional Public Prosecutor
Date of Hearing and Judgment : 12.02.2021
BEFORE
HON'BLE MR. JUSTICE MIR ALFAZ ALI
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT AND ORDER (Oral)
(Mir Alfaz Ali, J)
Heard Ms. B. Sarma, learned Amicus Curiae for the accused-appellant and Ms. D. Bhuyan, learned Additional Public Prosecutor for the State respondent.
2. This jail appeal is directed against the judgment and order dated 26.02.2018 passed in Sessions Case no. 191/2013 by the learned Additional Sessions Judge (FTC), Hojai, whereby the accused-appellant was convicted under Section 302, Indian Penal Code (IPC) and Page No.# 2/8 sentenced to rigorous imprisonment for life and fine of Rs. 10,000/- with default stipulation.
3. The prosecution case unfolded during the trial, in brief, is that on 30.06.2006, the younger sister of the informant came home at about 10-30 o'clock at night with grievous injuries on her body. On being asked by the informant (P.W.1), the deceased told that the accused-appellant, who happened to be the 'Imam' of the Mosque, inflicted the injury. The victim succumbed to the injuries, immediately after disclosing about the assailant. The FIR (Ext.1) was lodged by P.W.1, Abdul Wajid, on the basis of which the police registered Murajhar Police Station Case no. 78/2006 under Section 302, IPC. During investigation, police visited the place of occurrence, seized some incriminating materials, recorded statements of the witnesses, sent the body for postmortem and on completion of investigation, laid charge sheet against the accused-appellant.
4. During trial, learned Additional Sessions Judge framed charge against the accused- appellant under Section 302, IPC, which was abjured by him. The prosecution examined 9 (nine) witnesses to substantiate the charge framed against the accused-appellant and on appreciation of evidence, the trial court convicted the accused-appellant and awarded sentence as indicated above.
5. Learned amicus curiae strenuously arguing for acquittal of the accused-appellant submits that the alleged statement of the victim treated to be dying declaration by the learned trial court was totally unreliable, and as such, the conviction and sentence of the appellant solely on the basis of such dying declaration is not sustainable.
6. On our assessment of the evidence, we also find that the learned trial court convicted Page No.# 3/8 the accused-appellant primarily relying on the oral dying declaration made by the deceased as deposed by P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.7.
7. P.W.1, the informant stated in his evidence that the accused-appellant visited his house at about 7-00 pm to enquire, whether the victim had brought a religious book which was denied by the victim. He further stated that at about 10-00 o'clock at night he found the victim coming home with her body smeared with blood. According to him, the victim told that the accused-appellant committed rape on her in the mosque and thereafter inflicted the injury by hacking her with " dao". During cross-examination, this witness stated that after taking meal, the victim went to sleep in her own room. However, after a while the mother of the victim informed P.W.1 that Mehana (victim) was missing. He also stated during cross- examination that initially he made search for Mehana and thereafter he slept. He also pleaded ignorance as to from which direction the victim came home at night.
8. P.W.2, brother of the P.W.1 also deposed in the same tune, that the accused-appellant visited their house at about 7-00 pm to enquire about a book, and when the victim stated that she did not bring the book, the accused left their house. He further stated that after the accused-appellant left their house, he was under the impression that the victim was in her room, however at about 9-00 pm, the victim returned home with injury on her body and on being asked by him, the victim told that the accused-appellant assaulted her and also tried to finish her off.
9. P.W.3 and P.W.4 stated that hearing hue and cry in the compound of the P.W.1, he came there and had noticed injury on the body of victim. Both the P.W.3 & P.W.4 further stated that on being asked by them, victim told that the accused-appellant inflicted the cut Page No.# 4/8 injury. The P.W.5, mother of the victim testified that at about 6-00 pm the victim went out from the house to urinate and thereafter she went missing. Though search was made, they did not find her. However, at about 8-00/9-00 pm, the victim returned home with her body smeared with blood. She further stated that on being asked by her, the victim told that the accused-appellant inflicted the cut injury in the mosque.
10. P.W.6 also stated that at about 6-00 pm, the victim went missing after going to attend the call of nature. According to him, at about 8-00 o'clock, the victim came back home, with injuries and on being asked by him, the victim told that the accused-appellant inflicted cut injury. She further stated that the victim was taken to police station and on the way to hospital the victim died.
11. P.W.7, the father of the victim, deposed that having come to know about the occurrence from P.W.1, he came to the house of P.W.1 and found the victim in injured state. He further stated that on being asked by him, the victim told, that the accused-appellant blamed her of taking away book from the mosque and on the pretext of such blame, the accused-appellant inflicted cut injury to her with dao. He further stated that he took the victim to police station and after making the statement (alleged dying declaration), the police advised him to take the victim to hospital and accordingly, when the victim was taken to hospital she died on the way. During cross-examination, he admitted to have stated before police that he heard from the villagers about the dying declaration made by the victim. Therefore, admittedly victim did not make any dying declaration before him.
12. It is a settled law that a dying declaration, which is voluntary, true, reliable and free from suspicious circumstance, can be made the basis of conviction, though oral dying Page No.# 5/8 declaration is considered to be a weak kind of evidence. The Apex Court observed in Darshana Devi vs. State of Punjab (1995) Supp(4) SCC 126 that even though an oral dying declaration can form the basis of conviction in a given case, but such dying declaration has to be trustworthy, and free from every blemish and inspire confidence. In Nallapati Sivaiah vs. SDO (2007) 15 SCC 465 the Apex Court held that it is unsafe to record conviction on the basis of a dying declaration alone in cases, where suspicion is raised as regards the correctness of the dying declaration.
13. In the instant case, we find more or less three sets of oral dying declaration. According to P.W.1, when the victim came home with injuries, on being asked by him, the victim told that the accused-appellant subjected her to sexual assault in the mosque and thereafter inflicted the injuries. P.W.7 stated that the accused-appellant inflicted the injuries to her by blaming her of taking away religious book from the mosque. Both the P.W.3, P.W.4, P.W.5 & P.W.6 stated that on being asked by them, the victim told that she was cut in the mosque by the accused-appellant. Therefore, apparently the content of the dying declaration as deposed by three set of witnesses are different.
14. P.W.1, the informant stated that when the victim returned home at 10-00 o'clock, on being asked by him, she made the dying declaration and immediately after making the dying declaration, the victim collapsed. If the evidence of P.W.1 that immediately after making the so called oral dying declaration to him the victim died, then the oral testimony of P.W.3, P.W.4 & P.W.7 cannot be believed in as much as they could not have the opportunity to find the victim alive, in as much as, P.W.3 & P.W.4 came later after hearing hue and cry in the house of the P.W.1 and P.W.7 came on being informed by the P.W.1 about the occurrence.
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15. P.W.9, Investigating Officer (I.O.) has deposed categorically that the dead body of the victim was taken to police station, whereas P.W.7, the father of the victim deposed that the victim was taken to police station, where she made the oral dying declaration and thereafter on being advised by the police the victim was taken to hospital and she died on the way.
16. According to P.W.1, victim came home at about 10-00 pm whereas according to the P.W.2, brother of the P.W.1, victim came home at 9-00 pm with injury on her body. P.W.6, another brother of the victim, deposed that the victim was missing from 6-00 pm after she had gone out for attending the call of nature. According to him, the victim came back at 8-00 o'clock. P.W.1 the informant stated that when the mother of the victim informed him that the victim was not available in the house, he made a search and then went to sleep and thereafter the victim came home back about 10-00/10-30 pm. This conduct of the P.W.1, brother of the victim also appears to be very much unusual and incompatible with normal human conduct.
17. The oral testimony of the P.W.1, P.W.2, P.W.5 and P.W.6 all being member of the victim's family shows that the testimonies of all these vital witnesses as to disappearance of the victim and her coming back home late at night was inconsistent and contradictory, which suggests, that either they did not tell the truth before the Court or tried to suppress the real genesis of the occurrence. We also noticed that the testimony of the P.W.7 as regard dying declaration is hardly worthy of credence, in as much as, he stood contradicted with his previous statement recorded under Section 161, CrPC. This apart, the oral testimony of the P.W.1 as indicated above belied the oral testimony of the P.W.3, P.W.4 & P.W.7 as to dying declaration. Therefore, all these vital witnesses who deposed regarding dying declaration are Page No.# 7/8 hardly worthy of placing reliance. It is to be borne in mind that truthfulness or veracity of the oral dying declaration depends upon the credibility or trustworthiness of the witnesses who deposed regarding dying declaration.
18. Though as per the dying declaration, the injuries were inflicted in the mosque, in the sketch map (Ext.7) prepared by the Investigating Officer, the place of occurrence has been shown in a different location. Evidently there were multiple oral dying declaration which were not consistent and reflected three different version deposed by three set of witnesses. Thus, wide variation in the content of the dying declaration, deposed by the different witnesses, unreliability of the witnesses, who deposed about the dying declaration, unusual conduct of the members of the family of the victim, inconsistency between the circumstantial evidence, and the so called dying declaration regarding the place of occurrence demonstrates that the oral dying declaration in the instant case was not free from suspicious circumstances and, as such, in our considered opinion, the so called oral dying declaration as deposed by the PWs are hardly inspires confidence of the Court. The Apex Court in Rasheed Beg vs. State of Madhya Pradesh (1974) 4 SCC 264 held that when the dying declaration is suspicious, it should not be acted upon without corroborative evidence. Therefore, the oral dying declaration in the instant case in our considered view, in the absence of any other independent corroborative evidence cannot be made the sole basis of conviction. We, however, do not find any other independent evidence to support the prosecution case as to dying declaration. In the above fact circumstances, we are of the considered opinion that prosecution evidence in the instant case falls short of proving the charge under Section 302, IPC against the appellant, beyond reasonable doubt, and as such, the conviction and sentence of the appellant cannot be maintained. We therefore, set aside the conviction and Page No.# 8/8 sentence. The appeal is allowed accordingly.
19. We direct that the appellant be released forthwith, if not required in any other case.
20. Appreciating the assistance rendered by Ms. B. Sarma, learned Amicus Curiae, we hereby provide that she will be entitled to Rs. 7,500/- as professional fee, which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.
21. Send down the LCR.
JUDGE JUDGE Comparing Assistant