M.A. Ali, J
1. Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. M.U. Mondal, learned counsel for the appellant and Ms. B. Bhuyan, learned
Addl. P.P., Assam for the respondents.
2. This appeal is directed against the judgment and order dated 18.12.2017 passed by the learned Addl. Sessions Judge, Bilasipara, in Sessions Case
No. 190/2010. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for
life and fine of Rs. 30,000/- with default stipulation.
3. According to the prosecution, the deceased Jamela Khatun was married to the appellant and soon after the marriage, the present appellant at the
instigation and ill advice of one Monowar Hussain, who was named in the FIR as co-accused, subjected the deceased to physical torture upon demand
of money. On 09.01.2003, the appellant demanded the victim to bring Rs. 10,000/- from her parents and on her refusal, the present appellant hit the
deceased on her neck with a ‘Nepali Sora’ (knife) in presence of Monowar Hussain and consequently, the deceased sustained grievous injuries.
The father of the deceased, Jalal Uddin lodged an FIR on 13.01.2003, on the basis of which, police registered Bilasipara P.S. Case No. 9/2003 under
Section 498(A)/109 IPC. During investigation, the deceased succumbed to the injuries and therefore, on prayer of the Investigating Officer, section
302 IPC was added. During investigation, police recorded the statement of the witnesses under Section 161, prepared inquest report, sent the body of
the deceased for postmortem examination and Dr. Sashidhar Deka (PW-11) conducted the postmortem examination.
4. The Autopsy doctor (PW-11) found a sharp cutting wound over left side of the neck extending from nap of the neck to the shoulder on the left side
about 5 inches in length. On exposure, all deep muscles of neck were found damaged. A liniar fracture over left side of 6 vertebrae and a sharp
cutting wound over right side of cheek size about 2 inches in length muscles deep were also found. In the opinion of the doctor, the cause of death
was due to cardio-respiratory failure as a result of injury sustained by the deceased.
5. On completion of the investigation charge sheet was laid against the present appellant under Section 498(A)/302 IPC and eventually the appellant
stood trial.
6. In course of trial, charges under Section 304-B/302 IPC were framed against the appellant, to which, he pleaded not guilty. In order to establish the
charges, the prosecution examined as many as 11 witnesses. On completion of the prosecution evidence, the accused/appellant was examined under
Section 313 CrPC, wherein he took the plea of innocence and examined four witnesses in his defence. On appreciation of evidence, learned Sessions
Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above.
7. Learned Sr. Counsel for the appellant, Mr. H.R.A. Choudhury submits that the conviction of the appellant was based solely on the dying declaration
of the victim, which according to the Sr. Counsel was not at all reliable and therefore, the impugned judgment of conviction and sentence is not
sustainable. Per contra, supporting the conviction and sentence of the appellant, learned Addl. P.P., Ms. B. Bhuyan contended, that there was no
significant infirmity in the dying declaration so as to render it unreliable.
8. Apparently, there was no direct evidence of the occurrence and the learned Sessions Judge basically relying on the dying declaration recorded the
conviction of the appellant.
9. Out of the 11 witnesses examined by the prosecution, PW-1, the father of the deceased was the first informant. He stated in his evidence that at
about 10.30 PM, he received an information that the condition of his daughter (deceased) was serious and immediately he rushed to the house of the
appellant and found, that the deceased was already shifted to Bilasipara hospital. He further stated that noticing the condition of the deceased, the
doctor of Bilasipara hospital referred the victim to Dhubri and accordingly she was treated in Dhubri for 2/3 days. Thereafter they took the victim to
Guwahati for treatment and from Guwahati, the victim was taken to his house, where she died after 8-10 days. During cross examination, he stated,
that the conjugal life of the deceased and her husband was moving smoothly. He also stated that his thumb impression was obtained in the FIR by the
villagers and pleaded ignorance about the contents. It was also elicited from this witness that there was no conversation between the deceased and
himself while travelling to Guwahati for treatment.
10. PW-2, pleaded ignorance about the cause of death. He, however, stated that the conjugal life of the deceased and her husband was peaceful. The
PW-4 & PW-5 also pleaded ignorance as to who inflicted the injury.
11. PW-3, PW-6 & PW-7 were declared hostile by the prosecution. Though, the oral testimony of hostile witness is not required to be rejected lock
stock and barrel, and there is also no bar in taking into consideration the evidence of the hostile witnesses to the extent, supporting other prosecution
witnesses, we find nothing in their evidence, which could be of any assistance to the prosecution case, inasmuch as, the prosecution, during cross
examination of these three hostile witnesses, failed to elicit anything worthy of taking into consideration.
12. PW-8, who was an Executive Magistrate at the relevant time, deposed that he recorded the dying declaration of the deceased Jamela Bibi on
10.01.2003 and proved the said dying declaration as Ext.1. He also stated that the dying declaration was recorded in presence of PW-1 & PW-6.
During cross examination, he admitted that there was no mention in the Ext.1, that he recorded the dying declaration on requisition of the police. He
also admitted in his cross examination that the thumb impressions of the deceased and the witnesses in the dying declaration was not endorsed by him.
13. PW-10 , the Investigating Officer testified that on 13.01.2003, he was posted as attached officer in Bilasipara Police Station and he was entrusted
with the investigation of P.S. Case No. 9/2003 under Section 498(A)/109 IPC. He further deposed that the victim was initially admitted in Bilasipara
SHC and later on, she was shifted to Dhubri Civil Hospital for treatment, wherefrom the deceased was taken to Guwahati Medical College &
Hospital for better treatment. After released from the Guwahati Medical College & Hospital, the deceased was taken to her paternal house and
thereafter again she was admitted at Dhubri Civil Hospital and then the dying declaration of the deceased was recorded by the Executive Magistrate,
P.K. Sharma on 10.01.2003. The testimony of this witness also found to be inconsistent with regard to requisition being made for recording the dying
declaration. At one point he stated that requisition was given for recording the dying declaration. Again he stated that he did not make any prayer for
recording dying declaration.
14. DW-1, who happens to be the daughter of the deceased as well as the appellant testified that on 09.01.2003, at about 7.30 PM, she along with her
mother were cooking in the kitchen. When her mother went out to dispose dirty water, some unknown miscreants attacked her mother and she fell
down on the ground. As she raised alarm, neighboring people, namely, Sanjib Ali, Porman Ali, Asma and Hussain Ali came to the place of occurrence.
She further stated that at the time of occurrence, her father was in his grocery shop at a distance of about 2 furlong in front of the Indian Oil Petrol
Pump. She also stated that her father (appellant) came to the place of occurrence on being called by Porman Ali and thereafter the deceased was
taken to Bilasipara hospital. She further stated that her mother was in senseless condition and was not in a position to speak. According to her, after
release from the Gauhati Medical College & Hospital, the deceased was taken to the house of her grandfather (PW-1) and after 21 days she expired.
During cross examination of this witness, nothing could be elicited except putting a suggestion that there was light at the place of occurrence, which
she denied, and as such her statement on material fact with regard to the occurrence remains uncontroverted. DW-2 also corroborated the evidence
of DW-1 that the appellant was not present at the scene of occurrence and he (DW-2) informed the appellant who was in his shop. During cross
examination of DW-3 by prosecution, it was further confirmed that when he (DW-3) arrived at the place of occurrence upon hearing ‘halla’,
appellant was not present there. DW-4 stated that he was also in the house at that relevant time. According to him, when Jamela Bibi disposed of
water outside the kitchen, suddenly someone hit her on her shoulder. This witness also stated that the appellant was in his shop at the relevant time
and Parman Ali (DW-2) informed the appellant about the occurrence. The presence of DW-4 at the place of occurrence was also admitted in the FIR
and therefore he was also a natural witness to the occurrence.
15. A dispassionate scrutiny of the oral testimony of the prosecution witnesses would show that except the dying declaration, there was no other
evidence to support the prosecution case. Although, the allegation was made in the FIR by the PW-1, father of the deceased, that the accused
appellant inflicted injuries to the deceased on her refusal to bring money from her parents, during the evidence, PW-1, stated that he was not aware of
such averment in the FIR. He further stated that his thumb impression in the FIR was obtained by the villagers.
16. PW-8, the Executive Magistrate deposed about the dying declaration and also proved the said dying declaration as Ext.1. According to PW-8, the
dying declaration was recorded on 10.1.2003. Whereas, according to PW-10, the Investigating Officer, after the occurrence the deceased was taken
to Bilasipara hospital and thereafter to Dhubri Civil Hospital and from Dhubri Civil Hospital she was taken to Guwahati Medical College & Hospital
and after release from Guwahati Medical College & Hospital, the deceased was brought to her parental home and she was again admitted in Civil
Hospital and then only the dying declaration was recorded. Evidently, the occurrence took place on 09.01.2003 in the evening and the FIR was lodged
after four days i.e. on 13.01.2003 at 2.10 PM. If the evidence of PW-10, the Investigating Officer is believed then the Ext.1, the dying declaration
could not have been recorded on 10.01.2003. The PW-10, the Investigating Officer further deposed that he did not give requisition for dying
declaration. PW-8 also denied about any police requisition. However, Ext.1 dying declaration shows that there is a reference of college TOP GD
Entry No. 1/9/03, but he said G.D. Entry has not been proved. Although, PW-8 stated that he recorded the dying declaration, he also admitted that he
did not endorse the thumb impression of the declarant and the witnesses, who were stated to have been present at the time of recording the dying
declaration. Ext.1 shows that the thumb impression of the alleged declarant and witnesses being father of the declarant was endorsed with detailed
description. However, there is nothing in the evidence as to who endorsed the thumb impression in the Ext.1. This facts also creates doubt about the
sanctity of the Ext.1. The PW-1, father of the deceased has been cited as a witness to the dying declaration, but the said PW-1, who lodged the FIR
did not make any whisper either in the FIR or in his evidence in court regarding any dying declaration as deposed by PW-8. The PW-6, who was also
shown as a witness to the dying declaration denied his presence at the time of recoding the dying declaration. PW-6 was however declared hostile.
But we find no reason to doubt the veracity of the oral testimony of the PW-1, who was none but the father of the deceased and also the first
informant. The silence of the PW-1 regarding the dying declaration and the evidence of the PW-8 that he did not endorse the thumb impression of the
dceased as well as PW-1 in the dying declaration, coupled with the evidence of PW-1 that the FIR was prepared by the villagers and his thumb
impression was obtained without informing him about the content of the FIR, further strengthen the doubt as to the credibility of the purported dying
declaration.
17. True it is, a dying declaration can be the basis of conviction, provided it stands the test or truth, and voluntariness and free from any infirmity.
After all, it is an untested evidence of a person, who is no more, and there is no scope to test the veracity of the dying declaration by way of cross
examination. Therefore, before basing a conviction solely on dying declaration court must get hundred percent assure, that what is stated in the dying
declaration in the unalloyed truth and free from any kind of suspicion. The Apex Court in Nalla Sivaiah Vs. SDO, (2007) 15 SCC 46,5 observed that it
is unsafe to record conviction on the basis of dying declaration alone in cases, where suspicion is raised as regard the correctness of the dying
declaration. In such cases, court may have to look for some corroborative evidence by treating the dying declaration only a piece of evidence. In the
instant case, except the PW-8, there is no evidence to support the dying declaration. Even the father of the deceased, PW-1, who has been shown as
witness to the dying declaration has not supported the dying declaration. We also notice from the evidence of PW-8 that he did not mention in his
report about any police requisition. Though, a GD entry relating to college OP dated 10.01.2003 has been mentioned in the Ext.1, neither the said GD
entry has been proved nor the officer who recorded such GD entry, has been cited as an witness. The evidence of PW-10 that the dying declaration
was recorded after the deceased was brought back from Guwahati Medical College & Hospital also belies the prosecution version that the dying
declaration was recorded on 10.01.2003. The evidence of PW-8, that he did not endorse thumb impression of the witness or the deceased in Ext.1 and
absence of any evidence as to who endorsed the thumb impression and testimony of the PW-1, father of the deceased not supporting the dying
declaration are obviously the suspicious circumstances surrounding the purported dying declaration (Ext.1). What therefore crystallizes is that the
dying declaration heavily relied by the prosecution is evidently surrounded with various suspicious circumstances effecting it’s credibility and there
was no corroborative evidence to support the prosecution version or the dying declaration.
18. Once the dying declaration is found to be unreliable, the prosecution is left with no evidence to support its case. On the other hand, DWs examined
by appellant, more particularly, DW-1, who happens to be the daughter of the deceased, clearly stated in her evidence that she was present with the
deceased at the relevant time. According to DW-1, when her mother went to dispose of water outside the kitchen, she was assaulted by some
unknown persons in the darkness. She also stated that at the relevant time, her father (appellant) was not present at the place of occurrence and he
was in his shop at a distance of two furlong. Although this witness was subjected to cross examination, nothing material could be elicited. DW-2, DW-
3 & DW-4 also supported the DW-1.
19. It is settled position of law that there cannot be discrimination between the evidence of the prosecution and defence witnesses. The evidence of
prosecution as well as defence is entitled to get equal treatment, unless the defence witness is found to be a compulsive liar having gone out of the
way to oblige the accused. In the instant case, as indicated above, the evidence of DW-1, who is none but the daughter of the deceased remained
unshaken, and such evidence of the DW-1 is also supported by the DW-2, DW-3 & DW-4. Therefore, we find no reason to disbelieve the defence
witnesses, more particularly the DW-1.
20. In view of the above, we have no hesitation to hold that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt
and as such, the conviction and sentence of the appellant cannot be sustained. Accordingly, we set aside the impugned judgment of conviction and
sentence of the appellant.
21. The appeal is allowed. The appellant be released and set at liberty forthwith, if not required in any other case.
22. Send down the LCR.
23. We notice that the learned Sessions Judge has not passed any order with regard to compensation to the victim or her dependent. Apparently, the
deceased was survived by three kids. In view of the above, we direct that a copy of this judgment and order be placed before the District Legal
Services Authority, which in turn shall examine the necessity of providing compensation to the dependent of the deceased and pass appropriate award
of compensation under the Victim Compensation Scheme.
