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2015 DIGILAW 1498 (GAU)

Md. Sabir Hussain v. State of Assam

2015-12-07

C.R.SARMA, INDIRA SHAH

body2015
C.R. Sarma, J.:-- This appeal is directed against the Judgment and Order, dated 28.01.2015, passed by the learned Addl. Sessions Judge No. 1, Kamrup (M), Guwahati, in Sessions Case No. 124(K)/2010 under section 448/302 IPC, convicting the appellant under sections 448/302 IPC and sentencing him to suffer simple imprisonment for one year for his conviction under section 448 IPC and rigorous imprisonment for life and fine of L 5000/- in default of payment of fine, suffer simple imprisonment for 6 months for his conviction under section 302 IPC. Being aggrieved by the said conviction and sentence, the appellant has come up with this appeal. 2. Heard Mr A.K Das, learned counsel appearing for the appellant as well as Ms S. Jahan, learned Additional Public Prosecutor, Assam appearing for the State respondent. 3. The prosecution case, in brief, is that, on 09.09.2007 at about 12-30 P.M., while the deceased was residing in her house at Hatigaon, Guwahati, the accused (i.e. appellant) entered the house and assaulted the deceased with a Khukri causing injuries to her person. The injured person was carried to the hospital by her husband, but she succumbed to her injuries. The husband of the deceased lodged an FIR, on 09.09.2007, alleging, inter alia, that the appellant had caused death of the deceased by inflicting blows with Khukri. The said FIR was registered for the offence under section 302 IPC. 4. During the investigation, the police visited the place of occurrence, seized the Khukri and a Cell phone from the place of occurrence, forwarded the dead body of the deceased for post mortem examination, examined the witnesses and collected the post mortem report. At the close of the investigation, police submitted the charge sheet under sections 448 and 302 IPC against the accused person. The offence being exclusively triable by the Court of Sessions, the case was committed to the Court of the Sessions and the learned Addl. Sessions Judge, Kamrup (M) framed charges under section 448/302 IPC against the petitioner. The charges were read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as well as eight (8) witnesses including the Medical Officer (PW 6), who performed the autopsy on the dead body and the Investigating Officer (PW 8). The charges were read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as well as eight (8) witnesses including the Medical Officer (PW 6), who performed the autopsy on the dead body and the Investigating Officer (PW 8). After examination of the prosecution witnesses, the accused person was examined under section 313 CrPC. He denied the allegations, brought against him and declined to adduce defence witnesses. 6. Mr A.K. Das, learned counsel appearing for the appearing for the appellant taking this Court through the evidence, on record, as well as the FIR has submitted that the conviction was passed on the basis of dying declaration allegedly made by the deceased before her husband (PW 2) and another person (PW 3) and that the said dying declaration is not believable and trustworthy for want of corroborating evidence and inconsistency found in the evidence given by the PWs 2 and 3. It is also submitted that, though, the FIR (Ext. No. 6) was lodged on the date of occurrence i.e. on 09.09.2007, the PW 2 i.e. the informant clearly stated that he had lodged the FIR after the dead body was handed over to him. Learned counsel, appearing for the appellant, has submitted that the dead body of the deceased was handed over on 10.09.2007 i.e. after performing the autopsy and as such, in view of the said evidence given by the PW 2, the Ext. 6 cannot be accepted as the FIR, lodged by the informant. 7. It is also submitted by the learned counsel for the appellant that the informant ought to have disclosed about the dying declaration in the FIR, which was lodged after the alleged dying declaration was made by the deceased. It is also submitted that there is no consistency in the evidence given by the PW 2 and PW 3 regarding the dying declaration. The learned counsel for the appellant has submitted that the circumstantial evidence i.e. the blood stain available in the place of occurrence has already removed and the Khukri was also cleaned and thus the vital circumstantial evidence was destroyed. 8. The learned counsel for the appellant has submitted that the circumstantial evidence i.e. the blood stain available in the place of occurrence has already removed and the Khukri was also cleaned and thus the vital circumstantial evidence was destroyed. 8. In view of the above, learned counsel for the appellant has submitted that the said dying declaration alleged to be made before the PW 2 and PW 3, cannot be basis for conviction. Accordingly, the appellant is entitled to be acquitted, on benefit of doubt. 9. Refuting argument advanced by the learned counsel for the appellant, Ms S. Jahan, learned Addl. P.P. has submitted that there is sufficient material, on record, to show that the deceased had made the dying declaration and that the evidence given by the PW 2 and PW 3 regarding the said dying declaration can be accepted as the basis for conviction. The learned Addl. P.P. has fairly submitted that there is no sufficient corroboration in the evidence given by PW 2 and PW 3, regarding the dying declaration. 10. Having heard the learned counsel appearing for both the parties, we have carefully perused the evidence, on record. Carefully perusing the evidence of PW 2, we find that PW 2 specifically stated that he lodged the FIR, after the dead body was handed over to him. As the dead body was handed over to him on the next day i.e. 10.09.2007, the Ext. 6, which was lodged on 09.09.2007 and treated as FIR, cannot be the FIR lodged by the informant. From the evidence of PW 2 i.e. informant, it is found that he was the first person to arrive at the place of occurrence and finding his wife in injured condition he had lifted her and she disclosed that the appellant had caused injury to her. He further stated that alarm being raised by him, two persons, namely, Mr Samsul and Mr Iiazudin rushed to his house and that they carried the deceased to hospital. Though Mr Samsul has not examined, Mr Iiazuddin (PW 3) stated that at about 1 P.M., PW 2 had raised hue and cry saying that some one had cut his wife and that on hearing the said alarm, he had rushed to the house of the PW 2. Though Mr Samsul has not examined, Mr Iiazuddin (PW 3) stated that at about 1 P.M., PW 2 had raised hue and cry saying that some one had cut his wife and that on hearing the said alarm, he had rushed to the house of the PW 2. If the deceased had made dying declaration before the PW 2, immediately after his arrival in the place of occurrence, the PW 2 ought to have disclosed the name of the accused to PW 3 also. But from the evidence of PW 3, it appears that PW 2 did not disclose the name of the culprit. Accordingly, PW 3 stated that on his arrival at the place of occurrence, the deceased disclosed that the appellant had tried to commit rape on her and due to her refusal, he had assaulted her. According to PW 3, the deceased had made dying declaration twice i.e. firstly, at the time of his arrival at the place of occurrence and secondly, on way to the hospital. The failure of PW 2 to disclose the name of the accused before the PW 3 coupled with his failure to mention the name of the culprit in the FIR raises doubt about veracity of the evidence given by the PW 2. If PW 2, before lodging the FIR, came to know about the identity of the deceased, on the basis of the dying declaration, he would have certainly disclosed that the deceased had made the dying declaration. His failure to disclose about the dying declaration, in the FIR, creates doubt as to whether the deceased had made the dying declaration or not. 11. Though PW 3 stated that the deceased had made dying declaration before him, he was controverted with the suggestion that he did not make any such statement before the Investigating Officer, at the time of giving statement under section 161 CrPC and he denied the said suggestion. The Investigating Officer, who was examined as PW 8, in the cross examination, has stated that PW 3 stated before him that the victim had told him that he wanted to kill her. The Investigating Officer further stated that PW 3 stated that he heard before the incident that the husband of the deceased was suspected. 12. The Investigating Officer, who was examined as PW 8, in the cross examination, has stated that PW 3 stated before him that the victim had told him that he wanted to kill her. The Investigating Officer further stated that PW 3 stated that he heard before the incident that the husband of the deceased was suspected. 12. From the above, it appears that the PW 3 did not disclose about the dying declaration at the initial stage i.e. at the time of recording his statement under section 161 section. The failure of the PW 3 to disclose about the dying declaration before the Investigating Officer raises doubt about his evidence regarding dying declaration. 13. From the above, it is clear that PW 2, who heard the dying declaration, for the first time, did not disclose it before PW 3, who had arrived in the place of occurrence after the PW 2 and the PW 3 also, after hearing the dying declaration from the deceased, did state before the I.O. about such dying declaration. In view of the above, we find that the evidence, given by the PW 2 and PW 3, regarding dying declaration is not trustworthy and believable. Therefore, their evidence regarding dying declaration cannot be accepted as sole basis for conviction. 14. That apart, there is contradiction in the ocular evidence, given by PW 2 and medical evidence given by PW 6 with regard to the injuries sustained by the deceased. The PW 2 in his statement stated that one of the eyes of the deceased was completely damaged due to the injury inflicted on her forehead. But the Medical Officer (PW 6) who performed the autopsy did not state about such injury on her eyes. He mentioned about punctured injuries in the liver as well as the spleen of the deceased. According to the medical evidence, given by the PW 6, all other organs of the deceased were found to be healthy. The Medical Officer (PW 6) opined that the death was due to hemorrhage and shock as a result of the injuries sustained by the deceased and that the injuries were ante-mortem, caused by sharp pointed weapon and homicidal in nature. Ext. 4 is the post-mortem report and Ext. 4(1) is his signature. From the said medical evidence, it appears that the death of the deceased was a homicidal one. Ext. 4 is the post-mortem report and Ext. 4(1) is his signature. From the said medical evidence, it appears that the death of the deceased was a homicidal one. As stated by the I.O. (PW 8), the blood stain from the floor of the house, as well as the Khukri were already removed, before arrival of the police. The Investigating Officer further stated that he did not enquire as to who had done so. 15. Considering the entire facts and circumstances of this case, the blood stain available in the Khukri, i.e. the weapon of assault and also on the floor were vital circumstantial evidence. Removal of such evidence, before arrival of the police, also raises doubt about the prosecution story. 16. In view of the discussions made above, we have no hesitation in holding that the prosecution failed to prove the allegations, brought against the appellant, beyond all reasonable doubt. Therefore, the conviction and sentence recorded by the learned Sessions Judge cannot be maintained. 17. Accordingly, this appeal is allowed. The conviction and sentence passed by the learned Addl. Sessions Judge No. 1, Kamrup (M), Guwahati, in Sessions Case No. 124(K)/2010 is set aside. The appellant be set at liberty forthwith. 18. Return the LCR.