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2012 DIGILAW 1124 (GAU)

Intaz Ali v. State of Assam

2012-09-21

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 12.7.2007, passed by the learned Addl. Sessions Judge (FTC), Bongaigaon, in Sessions Case No. 41 (BGN)/2007, is in challenge in this appeal. The learned Sessions Judge by the impugned judgment and order convicted the appellant, under Section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/-, in default suffer rigorous imprisonment for 1 (one) year. We have heard Ms. R.D. Mazumder, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam. 2. The prosecution case, in brief, is that, on 28.06.2006 at about 3-30 P.M., Mr. Suleman Ali (hereinafter called the appellant) caused stab injuries on his rather, namely, Md. Sultan Ali (hereinafter called the deceased), by means of a dagger, due to certain domestic quarrel. Though the injured was shifted to hospital, he succumbed to the injuries, on the next day. On the same day Syed Samad Sk (PW-9), at about 4-10 p.m., orally informed the police and the said information was received vide G.D. Entry No. 518 dated 28.06.2006 of Bidyapur Police Station. 3. On receipt of the said information, police rushed to the place of occurrence, took the appellant, who was detained by the villagers, into custody, visited the Bidyapur hospital, where the deceased was undergoing treatment, seized a dagger, on being produced by Md. Sahadad Ali (PW-4), prepared sketch map of the place of occurrence. On the next day at about 8 p.m. police received a written FIR (ext. 2) from Md. Suleman Ali (PW-2). 4. During the course of investigation police sent the dead body for the post mortem examination. At the close of the investigation, police submitted charge-sheet under Section 302 IPC. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge, Bongaigaon framed charge, under Section 302 IPC, to which the appellant pleaded not guilty. 5. In order to prove their case, the prosecution examined, as many as 10 witnesses, including the medical officer (PW-1), who performed the post mortem examination and the Investigating Police Officer (PW-10). 6. At the close of the examination of the prosecution witnesses, the appellant was examined under Section 313 Cr.P.C.. He denied the allegations, brought against him and declined to adduce defence evidence. Considering the evidence on record, the learned Sessions Judge convicted and sentenced the appellant as indicated above. 6. At the close of the examination of the prosecution witnesses, the appellant was examined under Section 313 Cr.P.C.. He denied the allegations, brought against him and declined to adduce defence evidence. Considering the evidence on record, the learned Sessions Judge convicted and sentenced the appellant as indicated above. 7. Ms. R.D. Mazumder, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, more particularly, the dying declaration has submitted that except the evidence of PW No. 2, PW No. 3 and PW No. 4 regarding the dying declaration, there is no other evidence indicating involvement of the appellant. It is also submitted that the evidence of PW No. 2, PW No. 3 and PW No. 4, with regard to the said dying declaration, alleged to be made by the deceased, cannot be believed for want of sufficient corroboration and as such the same cannot be accepted to base the conviction. 8. The learned Amicus Curiae submitted that the learned Sessions Judge committed error by solely relying on the said evidence regarding dying declaration, inasmuch as the said witnesses, at the time of making their statements, under Section 161 Cr.P.C., did not whisper anything regarding the dying declaration. It is submitted, as the said witnesses disclosed about the dying declaration, for the first time, in the court, their evidence regarding dying declaration cannot be safely relied upon. Therefore, it is contended on behalf of the appellant that the said conviction and the sentence, based solely on the dying declaration, cannot be maintained. Contending that there is material discrepancy regarding seizure of the dagger, which is claimed to be the weapon of assault, the learned Amicus Curiae has submitted that the prosecution has failed to establish the case against the accused, beyond all reasonable doubt, and as such he is entitled to be acquitted. 9. Controverting the said argument, advanced by the learned amicus curiae, Mr. D. Das, learned Addl. Public Prosecutor has submitted that PW Nos.-2, 3, 4 and 6 (daughter of the deceased) rushed to the place of occurrence, immediately after the incident and that they clearly stated that the deceased had made dying declaration, before them, involving the appellant with the alleged crime. It is also submitted that the finding of the weapon near the place of occurrence is also an incriminating circumstantial evidence, lending support to the prosecution case. The learned Addl. It is also submitted that the finding of the weapon near the place of occurrence is also an incriminating circumstantial evidence, lending support to the prosecution case. The learned Addl. Public Prosecutor has submitted that, in view of marrying a girl by the deceased, there existed a quarrel/dispute between the appellant and his father and that the same was the motive behind the crime. The learned amicus curiae has submitted that the dying declaration, coupled with the seizure of the incriminating weapon and the said motive behind the crime, sufficiently indicate that none, other than the appellant, had committed the offence. Therefore, it is submitted that the learned Sessions Judge committed no error by recording conviction and sentence as indicated above. 10. Having heard the learned counsel, appearing for both the parties, and perusing the record, we find that the deceased died, oh 29.06.2006, due to the injuries sustained by him, on the previous day. The medical officer, who performed the autopsy, deposed as PW No. 1. He found the following injuries:- (1) One stab injury on 7th inter-costal space of chest in mid auxillary line on left side, size-1.5 inch oblique. (2) One stab injury on right side of back on 8th inter-costal space, size-1.5 inch long oblique. (3) Two incised injuries on left lower arm and forearm. 11. The medical officer opined that the cause of death was shock and haemorrhage with respiratory distress due to stab injury on his both the lungs and that the injuries were anti mortem in nature. 12. Mr. Suleman Ali, son of the deceased (PW-2), Mr. Sorab Ali (PW-3), Mr. Sahadat Ali (PW-4), Ms. Mofiza Bibi (PW-6) stated that, immediately after the incident, they rushed, to the place of occurrence and found the deceased, lying in injured condition. Therefore, it is clearly found that the deceased sustained stab injuries on his person and he succumbed to the said injuries. Now, the question is as to whether the appellant, as alleged by the prosecution, had given the said fatal blows. 13. Admittedly there is no direct evidence or eye witness to the occurrence. The prosecution case is based on the dying declaration, alleged to be made by the deceased and the recovery of a dagger from the place of occurrence. 14. The investigating officer, deposing as PW-10, stated that he had seized the dagger i.e. material ext. no. 1 vide ext. no. The prosecution case is based on the dying declaration, alleged to be made by the deceased and the recovery of a dagger from the place of occurrence. 14. The investigating officer, deposing as PW-10, stated that he had seized the dagger i.e. material ext. no. 1 vide ext. no. 3, on being produced by Sorab Ali (PW-3) in the police station. Therefore, it is found that the investigating officer did not find the dagger, either in the hand of the appellant or at the place of occurrence. Mr. Sahadat Ali, deposing as PW-4, stated that the material ext. no. 1 i.e. the dagger was found lying in the place of occurrence and that he had handed over the same to the police. But PW-1 i.e. Md. Sulernan Ali contradicted the evidence of PW-3 PW-4 and the I.O. by saying that the police had seized the dao from the place of occurrence. Whereas, the I.O. (PW-10) clearly stated that Sri Sahadat Ali (PW-4) had produced the seized dao in the police station and that the same was seized in the police station. Sahadat Ali (PW-4) also stated that he had given the dao to police. PW-3 Sorab Ali supported the said evidence of PW-4. Therefore, except PW-2, none of the said witnesses stated that the dao was seized by police in the place of occurrence. In view of such major contradiction it is doubtful, if the PW-2 had visited the place of occurrence. 15. From the above evidence, on record, it is found that none of the witnesses saw the said dagger, in the hand of the appellant. No forensic examination was made to find out if the said dagger had contained any human blood, not to speak of the blood of the deceased. Therefore, seizure of the said dagger, on being produced by PW-4, after finding the same in the place of occurrence, cannot lead to the conclusion that the same was used by the appellant in committing the crime. 16. Now, taking up the evidence, regarding dying declaration, we find that PW-2, who was the son of the deceased, stated that, at the time of occurrence, he was lying on bed due to his illness and coming to know about the incident he had rushed to the place of occurrence and found his father, lying injured, in the place of occurrence. According to this witness he found Sorab Ali (PW-3) providing first aid to the injured i.e. to the deceased. He stated that, on being asked by him, his father had told him, in presence of others, that the appellant had stabbed him with a dagger. 17. He admitted that he did not disclose the same to the police. The FIR lodged by him (ext. no. 2) is also silent in this regard. Therefore, his statement regarding dying declaration is found to be the first statement given before the Court. His failure to disclose such vital information at the initial stage, i.e. either at the time of making statement under Section 161 Cr.P.C. or in the FIR, raises doubt about the veracity of his evidence regarding dying declaration. According to this witness, before his arrival in the place of occurrence, Mr. Sorab Ali (PW-3) had already arrived there and he was providing first aid. Therefore, if the deceased had made any dying declaration Sri Sorab Ali (PW-3) also would have heard the same. 18. Mr. Sorab Ali, deposing as PW-3, stated that he rushed to the place of occurrence and finding the deceased in the injured condition, had asked him as to who had caused the said injury, to which the injured had replied that the appellant had caused his injury. He, however, stated that Mr. Sahadat (PW-4) also appeared in the place of occurrence and both of them had put the deceased in a hand cart for taking him to the hospital. He further stated that Suleman (PW-2), i.e. the son of the deceased also appeared in the place of occurrence. This witness did not tell that the deceased had again made dying declaration before the PW-2 and PW-4. PW-4 stated that when PW-3 was providing first aid to the deceased, he had arrived there and that the PW-2 also arrived there. This witness does not say that PW-2 had asked his father regarding the cause of injury. In his cross-examination PW-4 stated that Sorab Ali (PW-3) had informed him that the deceased had told that he was assaulted by his son Intaz Ali (i.e. appellant). PW-4 clearly stated that Md. Suleman i.e. the deceased did not tell him about the involvement of the appellant. In his cross-examination PW-4 stated that Sorab Ali (PW-3) had informed him that the deceased had told that he was assaulted by his son Intaz Ali (i.e. appellant). PW-4 clearly stated that Md. Suleman i.e. the deceased did not tell him about the involvement of the appellant. A careful scrutiny of the evidence of the PW-2, PW-3 and PW-4 reveals that PW-3 was the first person to have arrived in the place of occurrence. He was followed by the PW-4 and after PW-4, PW-2 had arrived. PW-4, who arrived prior to PW-2 and was present with the deceased, said that the deceased himself did not tell him about the accused. If the deceased did not tell the PW-4 there was no question of telling the PW-2, inasmuch as both of them were together in the place of occurrence. It is not a case that the deceased had told the PW-2 to the exclusion of PW-4. Therefore, it cannot be believed that the PW-2 had asked the deceased about the cause of the injury and that the deceased had made any dying declaration in his presence. This doubt is fortified by the fact that the PW-2 did not tell the police about the dying declaration. Therefore, his evidence regarding dying declaration, being the first disclosure made at the trial, is not free from doubt. That apart, we have already noticed that the presence of PW-2 in the place of occurrence, is also doubtful. In view of the above, the evidence of PW-3, regarding the dying declaration lacks corroboration. Therefore, the said evidence, regarding dying declaration, is not reliable. That apart, according to PW-2 police seized the dagger from the place of occurrence, but the I.O. stated that the same was produced at the police station by the PW-4. PW-3, Mr. Sorab Ali stated that the PW-4 picked up the dagger (Material Ext. No. 1) from the road and handed over the same to police. PW-4's evidence indicates, that the seizure of the dagger was made at the place of occurrence. This evidence of PW-2 and PW-3 failed to draw support from the I.O. In view of such discrepancies, it is doubtful if the PW-2 and PW-3 had appeared in the place of occurrence to witness the seizure and to hear the dying declaration. 19. PW-6 Ms. This evidence of PW-2 and PW-3 failed to draw support from the I.O. In view of such discrepancies, it is doubtful if the PW-2 and PW-3 had appeared in the place of occurrence to witness the seizure and to hear the dying declaration. 19. PW-6 Ms. Mofiza Bibi, daughter of the deceased, stated that she reached the place of occurrence and that the deceased had made dying declaration. Though PW-6 stated that PW-3 and PW-4 were found providing first aid to the deceased, she did not disclose about the presence of PW-2 and the seizure of the dagger. That apart, none of PW-2, PW-3 and PW-4 stated about the arrival of PW-6. Hence, we find no corroboration in the evidence of PW-6 to believe that she also appeared in the place of occurrence and heard the dying declaration. She denied the suggestion that she did not tell the police that her father had disclosed that he was assaulted by his son i.e. the appellant. The investigating officer, who deposed as PW-10, proved the said contradiction by saying that PW-6 did not tell her that the deceased had told him that he was stabbed by the appellant with a dagger. If the deceased had made any such dying declaration before the PW-6 then the PW-6, who gave statement under Section 161 Cr.P.C. had no reason to withhold such vital information. The said omission, which appears to be vital, being proved by the Investigating Officer, it cannot be believed that PW-6, had made such statement before the Investigating Officer at the time of her examination, under Section 161 Cr.P.C. 20. From the above discussed evidence it is found that PW Nos. 2, 3 and 6 claimed that the deceased made dying declaration before them. Their statements regarding dying declaration is found to be the first statement, made before the court. The informant also, at the time of filing the FIR ext. 2, did not disclose such vital fact, at the earliest possible time. Their failure to disclose such material fact at the initial stage i.e. at the earliest opportunity, raises doubt about the veracity of their evidence. 21. A close reading of their evidence indicates that the dying declaration was made to each of them to the exclusion of others. Hence we fell to find sufficient corroboration in their evidence, to believe that the deceased had made the dying declaration. 21. A close reading of their evidence indicates that the dying declaration was made to each of them to the exclusion of others. Hence we fell to find sufficient corroboration in their evidence, to believe that the deceased had made the dying declaration. In view of the above, for want of sufficient corroboration, we do not find the evidence, given by PW Nos. 2, 3 and 6, regarding dying declaration, to be reliable and trustworthy. Therefore, the said evidence regarding dying declaration cannot be treated as basis for the conviction. Except the said dying declaration there remains nothing in support of the prosecution case. Therefore, we are inclined to hold that the prosecution failed to prove the charge, brought against the appellant, beyond all reasonable doubt. In our considered opinion, the impugned conviction and sentence can't be maintained. 22. We find sufficient merit in this appeal. Accordingly the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not wanted in any other case. In view of the provision prescribed by section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in appropriate cases. Therefore, for the sake of brevity and in the light of our discussions, made in Jalilur Rahman Vs. State of Assam: 2012 (1) GLT 238: Criminal Appeal No. 93 (J)/2005 (disposed on 22.12.2011), with regard to the victim compensation, as provided by Section 357(A) Cr.P.C., we make the following directions: (1) As an interim measure, an amount of Rs. 50,000/- shall be deposited by the State Government with the District Legal Services Authority of Bongaigaon District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money,. Shall make an enquiry to ascertain as to whether, there is dependent (s), who suffered loss and injury as a result of death of the deceased and if such dependant (s) or legal representative (s) need any rehabilitation. (2) Upon such enquiry, if it is found that the dependent (s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. (2) Upon such enquiry, if it is found that the dependent (s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. (3) It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependent (s) or that the dependant (s) of the deceased/ victim does not required any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government (4) For the purpose of providing financial assistance towards rehabilitation of the victim of his/her dependant (s), in appropriate case, and for proper implementation of such scheme, as provided by Section 357A, Cr.P.C., it is necessary to ascertain the dependency factor and the financial status of such victim, his/her dependents, and of the accused person(s), as the case may be. Therefore, we direct that the Judicial Officers, working under, jurisdiction of this Court, during the course of trial, shall ascertain (i) the financial status of the victim or his/her dependent (s), if any, (ii) whether such persons need rehabilitation, as the case may be and also the financial status of the accused persons (s). The said findings of the enquiry shall be reflected in the judgment. Registry shall furnish copy of this judgment to all the Judicial Officers under the jurisdiction of this Court. Before we part with this record, we appreciate the assistance rendered by Ms. R.D. Mazumder, learned counsel, as Amicus Curiae and direct that an amount of Rs. 5,000/- be paid to Ms. R.D. Mazumder, learned Amicus Curiae, by the State Legal Services Authority as her remuneration. Return the L.C.R.