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2005 DIGILAW 307 (GAU)

Utpal Nath v. State of Assam

2005-04-12

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. This appeal is directed against the judgment, dated 29.4.99 passed by the learned Sessions Judge, Barpeta in sessions Case No. 58/1996. 2. On 25.3.94 the complainant Bhupen Nath P.W. 2 lodged a written FIR before the police staling inter-alia that on that day there was a village trial at the instance of the gaonbura wherein his elder brother Dwipen Nath had an altercation with the two accused persons Utpal Nath and Jiten Das and thereafter at 9.30 PM these two accused persons came to the house of Dwipen Nath and called him out for certain discussions and thereafter they stabbed him with daggers. The injured was thereafter removed to hospital where the doctor declared him dead. 3. During trial, prosecution examined as many as nine witnesses and on conclusion of the trial, the learned trial court convicted the accused Appellants under Section 302 IPC and sentenced them to imprisonment for life and to pay a fine of Rs.2000/- each in default further imprisonment for six months. Hence the present appeal. 4. We have heard Mr. A.S. Choudhury, learned Senior Advocate assisted by Mr. A.R. Sikdar, learned Counsel for the Appellants and Mr. F.H. Laskar, learned Public Prosecutor for the Respondents. 5. Bhupen Nath P.W. 2 is the brother of the deceased whereas Smti. Ramila Nath P.W. 3 is the wife of the deceased Dwipen Nath. Upen Ch. Nath P.W. 4 is Anr. brother of the deceased. Ram Nath P.W. 5, Prafulla Das Gaonbura P.W. 6, Raben Nath P.W. 7 are the other co-villagers. Prafulla Nath P.W. 8 has been declared hostile by the prosecution. All the above witnesses, however, have deposed about the assault on the deceased and his subsequent death in the hospital. P.W. 1 is Dr. Ganesh Sarma who conducted the post mortem over the dead body and found as follows: External Injuries: (i) One stab injury over right lower part of the abdomen-Size-about one and half inch x1" x3 1/3". (ii) One stab injury over the right thigh upper part-size-2" x1" muscles deep. (iii) One bruise over the back of the right upper part, size-about 2½"x2". Abdomen: There was perforation of small intestine at the side of wound. One loop small intestine was coming out through the wound. The injuries were ante-mortem in nature. 6. (ii) One stab injury over the right thigh upper part-size-2" x1" muscles deep. (iii) One bruise over the back of the right upper part, size-about 2½"x2". Abdomen: There was perforation of small intestine at the side of wound. One loop small intestine was coming out through the wound. The injuries were ante-mortem in nature. 6. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries sustained. The doctor was further of the view that perforation of the small intestine was sufficient to cause death in ordinary course and that the injuries must have been caused with sharp weapons. 7. In view of the overwhelming oral and medical evidence on record the trial court held this to be a case of homicide and we find no material to take a contrary view of the matter. 8. In the present case, the incident took place around 9.30 PM near the house of the deceased. P.W. 3, the widow, has deposed that around 9.30 PM the two accused persons came to their house and called out her husband whereupon her husband went out and within few minutes she heard shouts of her husband calling for help. She ran towards the place of occurrence and saw the two accused persons with her husband and thereafter the two accused persons fled. She claimed that she could recognize the accused persons as she had seen them from a distance of 20 cubits and it was a moonlit night. Further when she reached her husband the later told her that he has been assaulted by the two accused Appellants Utpal Nath and Jiten Das. P.W. 3 also saw P.W. 8 near her husband. As stated above, P.W. 8 has turned hostile and did not support the prosecution. The other witnesses also arrived in the meantime and her husband Dwipen Nath was carried in a handcart to Sorbhog hospital. 9. In the present case, we find that there is no eyewitness to the actual assault. Even the wife of the deceased who was first to arrive did not see the actual assault. However, she has deposed about the presence of the accused persons and she has also deposed that the two accused persons were last seen with the deceased while the later was alive. Even the wife of the deceased who was first to arrive did not see the actual assault. However, she has deposed about the presence of the accused persons and she has also deposed that the two accused persons were last seen with the deceased while the later was alive. The motive of assault was also brought out from the evidence of P.W. 2 and the evidence of P.W. 7 Raben Nath. They have deposed about the trial held in the house of the gaonbura where along with the two accused persons even P.W. 7 was sentenced to pay fine. The prosecution has also relied on the recovery of the weapons of assault at the instances of the accused persons as provided under Section 27 of the Evidence Act. The gaonbura Prafulla Das has deposed that the two accused persons led police to the recovery of the weapon of assault and he was a witness to the said seizure where the accused. Jiten @ Bhaity brought out the dagger material Ext. 1 from his house and handed over to police and the same was seized by seizure list Ext. 3. Likewise, accused Utpal led police to his house and produced a chain and a dao, material Ext. 2 and 3 and the same were seized by seizure list 4. The Investigating Police Officer Abdus Sattar Choudhury has also deposed that the two accused persons surrendered at the police station and confessed their guilt and stated that the weapons of assault shall be produced by them. Accordingly on being led by the police personnel the accused persons produced the weapons of assault and he had seized the material Exts. 1, 2 and 3 from the house of the accused persons in presence of the witnesses. The recovery under Section 27 of the Evidence Act has not been challenged. 10. P.W. 8 was Anr. eyewitness to the occurrence and his statement under Section 164 Code of Criminal Procedure was also recorded. However, he did not support the prosecution and he was declared hostile and his earlier statements were brought on record. The reason for this witness turning hostile is not far to know as we find that the accused Utpal is his nephew. eyewitness to the occurrence and his statement under Section 164 Code of Criminal Procedure was also recorded. However, he did not support the prosecution and he was declared hostile and his earlier statements were brought on record. The reason for this witness turning hostile is not far to know as we find that the accused Utpal is his nephew. The witness has deposed about the trial at the house of the gaonbura involving the accused persons and he has also deposed that he saw the deceased and P.W. 3 at the place of occurrence and that he had arrived there on hearing commotion. The witness has also admitted that he had told the Magistrate that after assaulting Dwipen both the accused had gone away. The witness had also admitted his signatures on the statement Ext. 5. 11. Besides the above, prosecution has also relied heavily on the dying declaration of the deceased to bring home the charge that it was the two accused Appellants who assaulted and killed the deceased. P.W. 3 has deposed that she had seen the two accused persons at the place of occurrence. She has also deposed that she saw injuries on the person of her husband and her husband told her about the assault made by the two accused persons. Bhupen Nath P.W. 2 has also deposed that on arrival at the place of occurrence he saw the deceased in a standing position but Dwipen thereafter fell down and he saw stab injuries on different parts of the body. The injured was removed to hospital and on the way to the hospital the deceased was talking and he disclosed that Utpal and Jiten assaulted him. Likewise, P.W. 4 has deposed that he saw the injured in a handcart and at that point of time the injured was being able to speak clearly and on being asked by him the deceased Dwipen Nath told him that accused I Utpal and Jiten had stabbed him. The deceased also asked for water. P.W. 5 was in his residence and while the deceased was taken to hospital in a handcart they stopped in front of his house and the witness saw Dwipen in the handcart. Dwipen was in a position to speak and Dwipen told him that Utpal and Bhaity have assaulted him. The witness saw stab injuries on the persons of the deceased. 12. Dwipen was in a position to speak and Dwipen told him that Utpal and Bhaity have assaulted him. The witness saw stab injuries on the persons of the deceased. 12. At this stage we may recapitulate the admissibility of dying declaration under Section 32 of the Evidence Act as well as the evidentiary value of such dying declaration whether oral or written and the various safeguards that are to be taken by the court in respect of dying declarations. 13. The earliest case in which the law on dying declaration was considered in details by the Hor'ble Supreme Court is Khushal Rao v. State of Bombay AIR 1958 SC 22 and since then the law on this point has been reiterated and re-enunciated in a catena of decisions. In the case of Kundula Bala Subrahmanyam v. State of Andhra Pradesh (1993) 2 SCC 684 the Apex Court held: 18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying persons and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. 14. In the case of Laxmi v. Omprakash AIR 2001 SC 2383 the Apex Court reiterated its earlier decisions in the following words: The law is well settled; dying declaration is admissible in evidence. The admissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighting of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weight with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declaration are more then one and apparently consistent. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. 15. 15. It may, however, be mentioned here that the law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment in the case of Laxman v. State of Maharastra (2002) 6 SCC 710 wherein the Apex Court overruled its earlier decision in the case of Laxmi v. Omprakash (supra). It is held that dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the persons recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the persons recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely (sic) the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. 16. The law on the subject was further explained by the Apex Court in the case of Uka Ram v. State of Rajasthan (2001) 5 SCC 254 wherein it has been held: The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. 17. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. 17. In the light of the above law, let us examine the present dying declaration. 18. In this case, there is no written dying declaration and the dying declaration on which the prosecution has relied is the oral dying declaration. There is, however, no dispute at the Bar that oral dying declaration is admissible in evidence. Moreover, we find from the evidence on record that there was no scope for recording dying declaration. After the incident the injured was carried to the hospital in a handcart and on arrival at the hospital the doctor declared him dead. Hence, this is not a case where there was any scope for recording the dying declaration and no such dying declaration was recorded and the prosecution has endorsed the oral dying declaration. 19. The learned Counsel for the Appellants referring to the case of Darshan Singh v. State of Punjab AIR 1983 SC 554 and the decision in the case of Laxmi v. Omprakash AIR 2001 SC 2383 , has submitted that the court should satisfy that the deceased was in a fit state of mind and capable of making statement. There is no dispute about the above requirement. As stated above, there were as many as four persons who have deposed about the oral dying declaration made by the deceased. All of them arrived at the place of occurrence soon after the incident and they have categorically deposed that the deceased was talking with them. They travelled to a distance of about 10 km from the place of occurrence to the hospital and it is stated that over a distance of 5 to 6 Km the deceased was in a proper state of health to speak. The witnesses have also stated that the deceased was speaking clearly. P.W. 5 who is an independent witness has categorically deposed that when the handcart stopped near his house Dwipen Nath has stated that Utpal and Bhaity had assaulted him. The witnesses have also stated that the deceased was speaking clearly. P.W. 5 who is an independent witness has categorically deposed that when the handcart stopped near his house Dwipen Nath has stated that Utpal and Bhaity had assaulted him. The witness has further stated that Dwipen asked for water and he was in a position to speak and he further told him 'Utpal and Bhaity (Jiten) whom I treat as members of my family, assaulted me'. P.W. 5 has deposed that when they reached near the office of the SDC. Dwipen stopped talking. 20. Although, the doctor who held autopsy was examined by the prosecution, the defence did not bring out from the doctor that the deceased was not in a position to speak soon after incident. So far blood clotting is concerned the doctor has stated that at times the blood clotting may take place within one hour. We find that the deceased had sustained injury on his abdomen only and there was no injury either on the head or neck. It is submitted on behalf of the Appellants that in absence of doctor's certificate as to the declaration of fitness of the state of mind, the dying declaration cannot be accepted. 21. In Laxman v. State of Maharastra (supra) the Constitution bench further observed: The court, however, has always to be on guard to see that statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by some one like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. 22. In view of the categorical statements of the prosecution witnesses, we hold that the deceased was in a proper and fit condition of health both physically as well as mentally to make statement. Moreover, there is no allegation that the oral dying declaration is a tutored or prompted version. The deceased had no animus with the accused persons and as a matter of fact they all belonged to the same family. Further the names of the assailants were also reported to the wife immediately on her arrival and there was no reason on the part of the prosecution including the independent witness to falsely implicate the accused persons. The deceased had no animus with the accused persons and as a matter of fact they all belonged to the same family. Further the names of the assailants were also reported to the wife immediately on her arrival and there was no reason on the part of the prosecution including the independent witness to falsely implicate the accused persons. The oral dying declaration as regards the involvement of the accused persons also stands supported/corroborated by the evidence of P.W. 3 who saw these two accused persons at the piece of occurrence and they fled the scene on seeing P.W. 3. 23. On consideration of the evidence on record, we have no hesitation to hold that the deceased was medically fit to make statement and in fact did make the oral dying declaration incriminating the two accused Appellants in the matter of assault on him, which led to his death. 24. The next submission of the learned Counsel for the Appellants is that all the prosecution witnesses are near relations of the deceased and as such they are interested and partisan witnesses and they have not come up with the true version of the incident. 25. The incident in the present case took place at around 9.30 PM when the two accused persons called the deceased out from his house and as such the inmates of the house and more particularly the wife of the deceased were the natural witnesses and P.W. 3 has deposed to that effect and as the incident took place near her house and she was waiting for her husband to return back. Naturally she was the first to arrive at the scene of incident. The house of other brothers was situated nearby and naturally they ran in. There were two independent witnesses in the persons of P.W. 5 and P.W. 8. P.W. 5 had fully supported the prosecution case and although P.W. 8 turned hostile, his evidence also lends support to the prosecution case. He has admitted his presence at the place of occurrence and the presence of the two accused persons at that point of time. The law is well settled that relationship of the prosecution witnesses with the deceased is not sufficient for disbelieving the testimony of the witnesses unless it is established that these witnesses have some motive to falsely implicate the accused persons. The law is well settled that relationship of the prosecution witnesses with the deceased is not sufficient for disbelieving the testimony of the witnesses unless it is established that these witnesses have some motive to falsely implicate the accused persons. Further, we find that the so called interested witnesses have deposed the truth. They have not tried to project themselves as eyewitnesses or even they did not go to the extent of saying that they had seen the accused persons with the weapons of assault or saw them fleeing the scene. We, therefore, hold that prosecution witnesses are reliable and truthful witnesses. 26. The next submission of the learned Counsel for the Appellant is that there is no evidence as to who inflicted the fatal injury and as such the Appellants cannot be convicted of the offence under Section 302/34 IPC. The learned Counsel has placed reliance on the decision of the Apex Court in the case of Roopa Ram v. State of Rajasthan 1999 Cal. Law Journal 2901. 27. The facts in Roopa Ram v. State of Rajasthan are altogether different. In that case out of the three accused persons two were acquitted by the trial court and one was convicted. Hence, in view of the above the Apex Court held that in absence of any conclusive evidence that the injury inflicted by the Appellant resulted in the death of the victim and in view of the acquittal of the other two accused persons, the Appellant cannot be convicted under Section 302 IPC but he will be liable under Section 326 IPC as he would be liable only for his own act. The facts of the present case are altogether different. The two accused persons called the deceased from his house and both of them together assaulted the deceased causing his death. The deceased sustained two stab injuries and it is, therefore, immaterial to find out as to who caused which injury. The facts and circumstances of the case clearly establish that both the accused persons had acted in furtherance of their common intention and assaulted the deceased to his death. 28. In view of the aforesaid, we find no merit in this appeal and the appeal is accordingly dismissed. 29. Send down the records. Appeal dismissed.