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2005 DIGILAW 358 (GAU)

Siraj Ali v. State of Assam

2005-05-04

ANIMA HAZARIKA, P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Both these appeals have been heard analogously and disposed of by this judgment as both these appeals have arisen out of a common judgment dated 28.9.99 passed by the Sessions Judge, Morigaon in Sessions case 39(M)/99 whereby the fifteen accused Appellants before us were convicted under Section 302 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- each in default further imprisonment for three months. Criminal Appeal No. 270/99 has been filed by 13 accused persons, whereas Criminal Appeal No. 164/99 has been filed by two accused Appellants namely Siraj Ali and Umed Ali @ Urmat Ali. 2. In GR Case No. 767/84 police submitted charge sheet against 16 accused persons and thereafter in the connected Sessions Case No. 39(M)/99 the trial court framed charge against all the 16 accused persons under Section 302 read with Section 34 IPC. As one of the accused persons Mafizuddin during pendency of the trial, died on 15.2.95, the case against him was abated and the remaining 15 accused persons were tried, convicted and sentenced as aforesaid. 3. The prosecution case in brief is that on 3rd October 1984 around 1 PM the accused persons being armed with lathi, spear dao etc. attacked the house of Liljan Bibi and Raham Ali and assaulted them. Raham tried to flee but he was assaulted and as a result of the injuries sustained Liljan Begum as well as Raham died. It was also alleged in the FIR that the accused persons caused extensive damage to the residential house and looted the goods. During trial, prosecution examined as many as nine witnesses. Defence examined two witnesses. The defence plea is that of denial. Abdul Kadir PW1, Mustt. Sarban Nessa PW 2, Fulbanu PW 3 and Chandbanu PW 4 are the members of the same family and they have deposed about the incident of assault and the death of Liljan and Raham as a result of the injuries sustained on the date of occurrence. Usman Ali PW 5 is a co-villager and he has supported the prosecution version of the incident. Usman Ali PW 5 is a co-villager and he has supported the prosecution version of the incident. Abu Bakkar Siddique DW 1 and Ahmad Khan DW 2 have also deposed that on the date of occurrence at around 1.30 PM they saw a mob surrounding the house of the deceased Liljan and thereafter they saw Raham and Liljan lying dead with grievous injuries and Liljan and Raham thereafter died. 4. PW 9 is Dr. Sachi Dhar Goswami who held the autopsy over the dead bodies and found as follows: Raham Ali 1. A dead body of a young boy of average built with Rigor Mortis is showing the following injuries: Injury No. 1 : One lacerated injury on the right fore-arm near the wrist joint 1" x 1/2" x muscle deep. Injury No. 2 : One perforating injury on the left forearm at the middle on the Dorsum of diameter 1/2" x muscle deep. Injury No. 3: One lacerated injury in the left index finger at the first phalange measuring 1/ 2" x 1/2" x bone deep shows fracture of the first phallanial bone. Injury No. 4 : One wound under stitches on the middle of right leg measuring 2" x 1/2" x bone deep showing fracture of right tibia. Injury No. 5 : One wound under stitches on the lower end of the left leg measuring 4" x 1/2" x bone deep showing fracture of both bones of the leg. , Injury No. 6 : One abrasion on the brow measuring 2" x 1/2" x skin deep opening through which shows the linear fracture of frontal bone of 1" length. Scalp, skull, vertebra-Noted already. Membrane of the brain ruptured. Brain contains blood clot. Lilian Begum A dead body of an old woman showing Rigor Mortis with average built the following injuries are found: Injury No. 1 : On lacerated injury on the first Phallange on the right middle finger measuring 3/4" x 1/2" x bone deep with fracture of first Phallangial bone. Injury No. 2 : One lacerated injury on the left leg at the middle on interior aspect measuring 5" x 3" x bone deep showing fracture of both tibia and fibula on the corresponding site. Injury No. 3 : One lacerated injury on the scalp of frontal region on the hair-line measuring 2" x 1/2" x skull deep. Injury No. 2 : One lacerated injury on the left leg at the middle on interior aspect measuring 5" x 3" x bone deep showing fracture of both tibia and fibula on the corresponding site. Injury No. 3 : One lacerated injury on the scalp of frontal region on the hair-line measuring 2" x 1/2" x skull deep. Injury No. 4 : One abrasion on the back of chest measuring 4" x 2" x skin deep. Injury No. 5 : 3 (three) perforating injuries on the back of right leg circular of diameter 1/2" x bone deep opening through which both the right tibia and fibula are seen fractured. Scalp, skull noted already. Skull shows a linear fracture of the frontal bone of 2" length corresponding to the Injury No. 3 above. Membrane of the brain ruptured. Blood clot in the brain matter. 5. In the opinion of the doctor the injuries were antemortem in nature and the death was due to shock and haemorrhage as a result of the head injuries and other injuries. The medical evidence has not been challenged. 6. In view of the overwhelming oral and medical evidence, we find that the trial court has rightly held this to be a case of homicide and we concur with the above finding. 7. The next question for consideration is whether the accused persons have participated in the above incident. In this case there is evidence of five eyewitnesses and there is the dying declaration recorded by the Executive Magistrate Ext. 1. 8. PW 1 Abdul Kadir has deposed that on the date of occurrence all the accused persons (the witness has named all the sixteen accused persons including the deceased Mafizuddin) armed with dao, dagger, spears etc., surrounded his dwelling house and attacked his daughter Chandbanu PW 4, Mustt. Fulbanu PW 3 and Mustt. Sarban Nessa PW 2 and deceased Raham. The accused Mafizuddin way led Raham and thereafter Samsher, Nur Islam and Kurshed assaulted him with dao. Raham was removed to Laharighat hospital where he died. Sarban Nesa PW 2 is Anr. injured in this case and she has deposed that the accused Samsher, Nur Islam and Rahul Amin assaulted Liljan Bibi with a dao and thereafter Samsher assaulted her. She sustained injury on her head and she fell down unconscious. Musst. Fulbanu is the sister of PW 1 and she resides nearby. Sarban Nesa PW 2 is Anr. injured in this case and she has deposed that the accused Samsher, Nur Islam and Rahul Amin assaulted Liljan Bibi with a dao and thereafter Samsher assaulted her. She sustained injury on her head and she fell down unconscious. Musst. Fulbanu is the sister of PW 1 and she resides nearby. She saw the accused persons (the witness has named all the accused persons) armed with weapons attacked the house of PW 1 and thereafter assaulted Raham Ali and Liljan Bibi and when she interfered she was also assaulted. As a result of the above assault Liljan and Raham Ali died. Chandbanu PW 4 is the daughter of PW 1 and she was in the house when the incident took place. The witness has named ten accused persons and the other accused persons have been identified by her as she does not know their names and as such she has supported the evidence as regards the incident and assault on the deceased persons. 9. Besides the family members, we find that there is the evidence of an independent witness Osman Ali PW 5 who is a co-villager. The witness knows both sides and he has named all the accused Appellants. The house of this witness is situated nearby and he has deposed that all the accused persons armed with dao lathi etc. came to the house of PW 1 and assaulted Raham, Liljan Bibi and other family members causing injuries. They also damaged the house and when Rahman fled the scene they chased him and thereafter apprehended Raham and made further assault on Raham. Liljan died on the spot whereas Raham Ali was removed to the hospital where he succumbed to the injuries. 10. In this case we find that all the prosecution witnesses have been cross-examined at length but the witnesses have withstood their testimony. The witnesses have also given details about the various acts and assaults made by the accused persons. 11. On perusal of the testimony of the five eyewitnesses we find that the prosecution case regarding the incident has been well established. There are only minor discrepancies here and there but they do not strike at the root of the case. The witnesses have also given details about the various acts and assaults made by the accused persons. 11. On perusal of the testimony of the five eyewitnesses we find that the prosecution case regarding the incident has been well established. There are only minor discrepancies here and there but they do not strike at the root of the case. As a matter of fact, the board facts of the case are never challenged and we find even the two witnesses examined by the defence have supported that the incident had taken place on the date of occurrence in the house of PW 1 and as a result of the injuries sustained Liljan and Raham died. The prosecution witnesses have pinpointed the participation of the accused persons in the above occurrence. As the accused persons had gone to the house of PW 1 being armed with lethal weapons and thereafter caused widespread damage to the house and attacked the inmates of the house the common intention is apparent and hence the question as to which accused caused which injury is immaterial and irrelevant. All the accused are jointly and severally liable for the act of the co-accused as they all acted in furtherance of their common intention. 12. In this case, from the trend of the cross-examination we find that the defence tried to bring out a story that the deceased and his family members were thieves and the deceased Raham Ali was a habitual thief and as such the villagers assaulted him and he died as a result of mob fury. The deceased may have been a thief but that cannot be a ground for taking the law in own hands and kill him and his family members. An attempt was also made to show that the accused persons were involved in the above incident. The evidence of DW 1 and DW 2 is of no help as we find that though these two witnesses came to the place of occurrence their evidence is of a negative nature, as they did not see the accused persons when they came to the place of occurrence. However, as stated above all the five prosecution eyewitnesses have categorically deposed about the participation of the accused persons we find that there is a recorded dying declaration of the deceased. The dying declaration was recorded by the Executive Magistrate, Laharighat. Ext. However, as stated above all the five prosecution eyewitnesses have categorically deposed about the participation of the accused persons we find that there is a recorded dying declaration of the deceased. The dying declaration was recorded by the Executive Magistrate, Laharighat. Ext. 1 is the said dying declaration and it reads as follows: Statement of Md. Raham Ali, S/O Lt. Hajarat Ali, Hacharagaon recorded at 4 P.M. on 3.10.94. On His solemn affirmation: My name is Raham Ali. My father's name is late Hajarat Ali. My house is a Hahsara village. Around 1.30 this day I was at home. By that time, Md. Samser Ali, son of Sadar Ali, Nur Islam, son of Samser Ali, Tamijuddin, son of Jakaruddin, Mafizuddin, son of Jakaruddin; Jamiruddin, son of Jakaruddin, Harmuj Ali, Son of Innash Ali, Razar Ali, son of Ynus Ali and Kuddush Ali, son of Yunus Ali, all belong to the Barthan Dailgaon, entered my house all of a sudden and attacked me with lathi, axe and...and caused grievous injuries to me (by cutting with axe etc.). My entire body was bleeding and I fell unconscious. Ext. 1(1): L.T.I. of Md. Raham Ali. 13. The recording Magistrate Mr. Mrinal Kanti Mazumdar has been examined as PW 6 and we find from his evidence that the dying declaration was recorded properly and there is no infirmity in it except the face in the dying declaration the deceased has stated nothing about his running away and being chased by the accused persons. This minor point might have escaped while the deceased was making the statement as the deceased was lying on the death bed. The above omission is not at all fatal. The witness has categorically stated that the deceased was in proper and fit mental and physical condition to speak and the dying declaration Ext. 1 was recorded on receipt of the police requision at Laharighat hospital. The deceased Raham Ali has deposed about the attack in their house and the assault on him by as many as eight accused persons. 14. The earliest case in which the law on dying declaration was considered in details by the Hon'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. 14. The earliest case in which the law on dying declaration was considered in details by the Hon'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 persons'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. One 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. 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. 15. 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 weighing 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. 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 pick 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 weigh 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 not 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. On the other hand if every individual dying declaration not 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. 16. 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 on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. 17. 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 on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. 17. 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 the 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. 18. The learned Counsel for the Appellant has further submitted that out of the fifteen accused persons, four accused persons namely Harmuj Ali, Rahul Amin, Siraj Ali and Urmat were minor. 19. We find that this plea was never raised before the trial court and no evidence was laid before it. The prosecution witnesses were also not cross-examined. The Appellants have however, submitted some certificates before this Court to show that these four accused persons are minor. 19. We find that this plea was never raised before the trial court and no evidence was laid before it. The prosecution witnesses were also not cross-examined. The Appellants have however, submitted some certificates before this Court to show that these four accused persons are minor. So far the accused Urmut Ali is concerned we find that the statement of this accused was recorded under Section 161 Code of Criminal Procedure Hurmuj Ali, Siraj Ali and Rahul Amin were examined under Section 313 Code of Criminal Procedure wherein they have stated that their age is 35 years and 30 years respectively. The statements were recorded some time in the year 1999 and hence we find that none of them were juvenile at the relevant point of time. It is further submitted that accused Urmat Ali son of late Unus Ali was seven years old at the time of the incident. 20. Considering the nature of the incident and the evidence of the prosecution witnesses it is difficult to believe that a seven years old boy could have wielded lethal weapon like a dao and caused injury on grown up persons. On careful consideration of the submissions made, we find no basis to place reliance on these certificates at this stage and that too after twenty years of the incident. 21. In the result, we find no merit in these appeals. Both these appeals are dismissed. Send down the records. The Chief Judicial Magistrate, Morigaon is directed to take the accused persons into custody to serve out the sentence and pay the fine. Appeal Dismissed.