Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 98 (GAU)

Abdul Kadir (MD. ) v. State of Assam

2016-02-11

C.R.SARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT : C.R. Sarma, J. The challenge in this appeal is to the judgment and order, dated 14.06.2013, passed by the learned Sessions Judge No. 2, Kamrup, Guwahati, in Sessions Case No. 323(K) of 2006, whereby and where under, the learned Sessions Judge convicted the appellants and Mr. Kala Ali alias Bhaiti Ali under Section 302 read with Section 34 of the Indian Penal Code (for short, IPC) and sentenced each of them to suffer imprisonment for life and pay fine of Rs. 5000/-, in default, suffer rigorous imprisonment for another period of 3 (three) months. 2. We have heard Mr. A.K. Bhattacharjee, learned Sr. Counsel, appearing for the appellant Nos. 1 and 2 and Mr. P. Kataky, learned Counsel, appearing for the appellant No. 3. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 3. The prosecution case, in brief, is that, on 27.03.2003, at about 8.30 p.m., when Md. Deraj Khan Ali (hereinafter called' the deceased'), was returning home from Athiapara, the appellants, along with other accused persons, finding him on the road in front of their house, had attacked him by means of dao, dager and axe etc. thereby causing injuries to his person. Hearing hue and cry, the brothers and other members of the family of the deceased, who were in their house, came out and rushed to the place of occurrence. They found the deceased, lying in injured condition, in the place of occurrence. The deceased, in injured condition, was taken home and from there, he was taken to the Hajo Public Health Centre, wherefrom he was referred to the Gauhati Medical College Hospital (for short, GMCH). While taking the deceased to the GMCH, the members of the family of the deceased had informed the Police at the Hajo Police Station and accordingly a GD Entry was made in the said Police Station. The deceased was escorted by Police to the GMCH, wherein, at about 2.30 AM, on the next day i.e. on 28.03.2003, he succumbed to the injuries. 4. After the death of the deceased, a written FIR (Ext. 1) was lodged by Md. Islamuddin Ahmed (PW-1) i.e. one of the brothers of the deceased. On receipt of the FIR, Police registered a case under Sections 147/148/341/302 IPC and launched investigation into the matter. 4. After the death of the deceased, a written FIR (Ext. 1) was lodged by Md. Islamuddin Ahmed (PW-1) i.e. one of the brothers of the deceased. On receipt of the FIR, Police registered a case under Sections 147/148/341/302 IPC and launched investigation into the matter. During the investigation, Police made inquest in respect of the dead body, got the post mortem examination done, visited the place of occurrence, prepared sketch map (Ext. 10), examined the witnesses and at the conclusion of the investigation, submitted charge-sheet (Ext. 14) against the appellants, under Sections 341/302/34 IPC. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class, Hajo, committed the case to the Court of Sessions and the learned Sessions Judge framed charge under Sections 302/34 IPC against the appellants. The charge was read over and explained to the accused persons, to which they pleaded not guilty. 5. In order to prove its case, prosecution examined as many as 16 (Sixteen) witnesses including the Medical Officer (PW-12), who performed the autopsy in respect of the dead body of the deceased and the Investigating Officer (PW-16). At the close of the examination of the witnesses for the prosecution, the accused persons were examined, under Section 313 of the Code of Criminal Procedure (for short, Cr.P.C.). They denied the allegations, brought against them and examined 4 (four) defence witnesses (DW Nos. 1 to 4). 6. Considering the evidence, on-record, the learned trial Judge held the accused persons guilty of causing death of the deceased and accordingly convicted and sentenced him, as indicated above. 7. Aggrieved by the said conviction and sentence, the convicts, as appellants, have come up with this appeal. During the pendency of the appeal, plea of juvenility was taken on behalf of appellant Md. Kala Ali @ Bhaiti Ali. By order, dated 19.03.2013, passed in Crl. M.C. No. 489/2013 (Crl. A. 178/2013), was noticed that appellant Md. Kala Ali @ Bhaiti Ali was a juvenile at the time of occurrence. Accordingly, the conviction and sentence, passed against him, was set aside and he was directed to appear before the Juvenile Justice Board, Kamrup, Guwahati for passing necessary order. 8. Mr. A.K. Bhattacharjee, learned Sr. Counsel, appearing for the appellant Nos. A. 178/2013), was noticed that appellant Md. Kala Ali @ Bhaiti Ali was a juvenile at the time of occurrence. Accordingly, the conviction and sentence, passed against him, was set aside and he was directed to appear before the Juvenile Justice Board, Kamrup, Guwahati for passing necessary order. 8. Mr. A.K. Bhattacharjee, learned Sr. Counsel, appearing for the appellant Nos. 1 and 2, taking this Court through the evidence, on-record, has submitted that, in fact, there is no eye witness to the occurrence and that the learned Sessions Judge convicted the appellants on the basis of the contradictory and inconsistent evidence, given by PW Nos. - 1, 2, 3, 4, 5, 14 and 15, who are the members of the same family. It is also submitted that, in view of long standing dispute, between both the parties, there existed enmity and ill-feeling between both the parties and as such considering the contradictory evidence, given by the said interested witnesses, the appellants can't be held guilty of the alleged offence. 9. The learned Sr. Counsel, referring to the evidence, given by PW-2 and PW-4, regarding movement of a motor vehicle, at the relevant time, through the place of occurrence, has submitted that neither the said motor vehicle could be identified by the witnesses, nor seized by the Investigating Officer and as such, without any substantive evidence, the existence of any motor vehicle, as source of light, at the relevant time, in the place of occurrence, is doubtful. Therefore, it is submitted that, as the alleged occurrence took place at about 8.30 P.M., on 27.03.2003, which was a dark night, it is hard to believe that the witnesses could identify the appellants, in the place of occurrence. 10. Mr. Bhattacharjee, learned Sr. Counsel, has also contended that, from the evidence given by PWs-1, 2, 3, 5, 14 and 15, who are the members of the same family, it appears that all of them had rushed to the place of occurrence and reached there at the same time and as such, the silence of PW-1, PW-3, PW-14 and PW-15, regarding availability of any motor vehicle, at the relevant time, raises doubt about the evidence, given by PWs-2 and 4, that they had seen the accused persons in the focus of light of a passing motor vehicle. 11. 11. With regard to the dying declaration, alleged to be made by the deceased, before PW-4, PW-5, PW-14 and PW-15, learned Sr. Counsel has submitted that silence of PWs-1, 2 and 3, who also rushed to the place of occurrence along with PWs-4, 5, 14 and 15 raises doubt about the evidence, given by PWs-4, 5, 14 and 15 that the deceased had made dying declaration. 12. The learned Sr. Counsel, referring to the evidence of PW-3, i.e one of the brothers of the deceased, has submitted that PW-3 clearly stated that no person, other than the three brothers (including PW-3) had visited the place of occurrence. The PW-1, PW-2 and PW-3 are brothers of the deceased and PW Nos. 14 and 15 were sisters, who were daughters and sons of PW No. 5. Therefore, the said evidence, given by PW-3, negates the evidence given by PWs-4, 5, 14 and 15 pertaining to the dying declaration. 13. Referring to the evidence, given by PWs-7, 8, 9 and 11, the learned Sr. Counsel has contended that the said independent witnesses failed to support the prosecution version that the appellants had assaulted the deceased. It is submitted that the appellants have been falsely implicated, out of grudge, due to the existing enmity between the parties and that the impugned conviction and sentence can't be maintained, for want of sufficient, cogent and convincing evidence and as such the appellants are entitled to be acquitted. 14. Mr. P. Kataky, learned Counsel, appearing for the appellant No. 3, adopting the argument, advanced by Mr. A.K. Bhattacharjee, learned Sr. Counsel, has submitted that the contradictory evidence, given by prosecution witnesses, raises serious doubt about the very presence of the said witnesses in the place of occurrence and as such, their evidence can't be reliable basis for recording conviction against the appellants. The learned Counsel has also contended that the learned trial Judge has failed to properly appreciate the evidence, given by the defence witnesses and committed gross error by holding the appellants guilty, on the basis of the uncorborated and contradictory evidence, given by the brothers (PW Nos. 1, 2 and 3), the sisters (PWs 14 and 15), the mother (PW 5) and the maternal uncle (PW 4) of the deceased. 1, 2 and 3), the sisters (PWs 14 and 15), the mother (PW 5) and the maternal uncle (PW 4) of the deceased. The learned Counsel has further contended that the prosecution failed to prove the case, beyond all reasonable doubt and as such the appellants are entitled to be acquitted. 15. Controverting the said arguments, advanced by the learned Counsel for the appellants, Ms. S. Jahan, learned Additional Public Prosecutor, has submitted that minor contradictions and omissions, on the part of the prosecution witnesses and their close relationship as members of the same family, can't be sufficient ground to discard their forceful evidence. 16. The learned Additional Public Prosecutor has submitted that all the prosecution witnesses, more particularly, PWs-1, 2, 3, 4, 5, 14 and 15, who rushed to the place of occurrence, immediately after the incident, clearly stated that they had seen the appellants in the place of occurrence and that the witnesses aforesaid could identify them in the focus of the light of a passing motor vehicle. 17. Referring to the dying declaration, the learned Additional Public Prosecutor has submitted that there is sufficient corroboration in the evidence, given by PW Nos-4,5,14 and 15, to believe that the deceased had made the dying declaration involving the appellants and as such, the learned trial Judge committed no error by relying on the said dying declaration. The learned Additional Public Prosecutor has also submitted that the evidence, given by the said close relatives, who were the natural witnesses, can't be discarded only on the ground that they are relatives. The learned Additional Public Prosecutor has further contended that, considering the facts and circumstances of the case, the said brothers, sisters and the mother were the natural witnesses inasmuch as they had rushed to the place of occurrence, immediately after hearing hue and cry. The learned Additional Public Prosecutor has also submitted that failure of PW-1, PW-2 and PW-3 to disclose about the dying declaration can't be sufficient ground to disbelieve the convincing evidence, given by PW Nos. 4, 5, 14 and 15. 18. The learned Additional Public Prosecutor has submitted that there are sufficient substantive evidence, indicating the involvement of the appellants and as such, the learned trial Judge committed no error by recording the conviction and the sentence aforesaid. 4, 5, 14 and 15. 18. The learned Additional Public Prosecutor has submitted that there are sufficient substantive evidence, indicating the involvement of the appellants and as such, the learned trial Judge committed no error by recording the conviction and the sentence aforesaid. Supporting the impugned judgment and order, the learned Additional Public Prosecutor has submitted that the appellants have been rightly convicted and sentenced and that the impugned judgment and order needs no interference. 19. Having heard the learned Counsel, appearing for both the parties, we have carefully perused the evidence, on-record and the impugned judgment and order. In order to appreciate the counter arguments, advanced by the learned counsel for both the parties and examine the correctness of the impugned judgment and order, we feel it proper to, briefly, scrutinise the evidence, on-record, in the following order. 20. In the present case, PW-1 (informant), PW-2 and PW-3 are the brothers, PW-4 is the maternal uncle, PW-5 is the mother and PW Nos. 14 and PW-15 are the sisters of the deceased. All the said witnesses clearly stated that the occurrence took place, on 27.03.2013 at about 8.30 PM, on the road, in front of the gate of the accused Mr. Abdul Gani and that the deceased, who was assaulted by the appellants, had succumbed to the injuries on the next day at about 2.30 A.M. P.W.-1 i.e. the informant stated that he lodged the written ejahar (Ext. No. 1) after the death of the deceased. 21. The Investigating Officer (I.O.), who deposed as PW-16, stated that information regarding the incident was received on the night of the occurrence and that a GD entry, being GD Entry No. 579 dated 27.03.2003, was made in the Police Station. He also stated that the injured i.e. the deceased, on being referred to the GMCH, was escorted by Police to GMCH on the same night and that, on the next day, PW No. -1, lodged a written ejahar i.e. FIR (Ext. 10) after the death of the deceased, who died at about 2.30 A.M. He further stated that after conducting inquest, the dead body was sent for post mortem examination. 22. PW-12, a Medical Officer of the GMCH, deposed that, on 28.03.2003, he performed the post mortem examination in respect of the dead body of the deceased. 10) after the death of the deceased, who died at about 2.30 A.M. He further stated that after conducting inquest, the dead body was sent for post mortem examination. 22. PW-12, a Medical Officer of the GMCH, deposed that, on 28.03.2003, he performed the post mortem examination in respect of the dead body of the deceased. The said Medical Officer opined that the deceased sustained multiple cut injuries and that the cause of death was shock and hemorrhage due to cut injuries, caused by sharp cutting weapon. He has exhibited the postmortem report as Ext. 5. PW-6, PW-7, PW-8, PW-9, PW-10 and PW-12, who were the independent witnesses stated, that, though, they did not see the accused persons assaulting the deceased, they came to know, on the fateful evening, that the deceased had sustained the fatal injuries and succumbed to the same. There is no dispute regarding the death of the deceased and the cause of death. 23. From the above, it is found that the death of the deceased was a homicidal one and he succumbed to the injuries sustained at the hands of some persons, in the place of occurrence i.e. on the road near the gate of the appellant Mr. Abdul Gani (accused person). 24. From the evidence, on record, more particularly, the evidence of PW-11, it is found that it was a dark night and PW-1, PW-2, PW-3, PW-4, PW-5, PW-14 and PW-15, who belonged to the same family, reached the place of occurrence, after hearing hue and cry. The basis of conviction, in the case at hand, is the oral evidence, given by the said witnesses and the dying declaration, alleged to be made by the deceased in the presence of PW-4, PW-5, PW-14 and PW-15 at the place of occurrence. 25. Now, the question is whether there is convincing and substantive evidence regarding involvement of the appellants with the death of the deceased. Prior to lodging of the written ejahar (FIR) i.e. Ext. No. 1, information, about the occurrence, was given to Police immediately after the occurrence i.e. before shifting the deceased to the GMCH and the same has been entered in the General Diary of the Police Station as GD entry No. 579 dated 27.03.2003 (Ext. 8). Another GD entry, being GD entry No. 585 dated 28.03.2013 (Ext. 9), was with regard to receipt of the written ejahar (Ext. 1). 26. 8). Another GD entry, being GD entry No. 585 dated 28.03.2013 (Ext. 9), was with regard to receipt of the written ejahar (Ext. 1). 26. In the first GD entry aforesaid, it was mentioned that accused Mr. Abdul Kadir, Md. Abdul Gani and members of their family had attacked the deceased with sharp weapon causing injuries to his person. In the second GD Entry (Ext. 9) and the written ejahar (Ext. 1) names of as many as 8 (eight) accused persons, including the appellants were mentioned. 27. As the 1st GD entry (Ext. 8), indicating the names of the assailants and the injured persons, was made at the first point of time, the same was the First Information Report (for short, FIR). The subsequent GD entry (Ext. 9) and the written ejahar (Ext. 1) can't be treated as FIR, in as much as those can be taken as statements, made under Section 161 Cr.P.C. 28. Neither in the Ext. 8, nor in the Ext 9 and the Ext. No. 7 mention about the dying declaration was made. Admittedly, the appellants belonged to the same family and there existed long standing dispute between both the parties. Therefore, in view of the existing enmity and ill will, we are required to carefully scrutinise the evidence of the PW Nos. 1 to PW-5, PW-14 and PW-15, who are members of the rival family. 29. Mr. Islam Uddin Ahmed, elder brother of the deceased, who had verbally informed the Police on the same night and lodged the written information (Ext. 1) with the Police, on the next day, deposed as PW-1. From his evidence, it appears that, at the time of occurrence, he and other members of his family were at home and hearing hue and cry they proceeded towards the house of the accused persons and then the accused persons had fled the place of occurrence. He also stated that the injured was taken home with the help of other members of his family and, there from, he was shifted to hospital. In his cross-examination, PW-1 stated that a person, who was on move told him that the accused persons were assaulting the deceased and that he was killed. This witness failed to disclose the identity of the said informer, who has not been examined as prosecution witness. In his cross-examination, PW-1 stated that a person, who was on move told him that the accused persons were assaulting the deceased and that he was killed. This witness failed to disclose the identity of the said informer, who has not been examined as prosecution witness. PW-1 also stated that there was land dispute with the accused persons and that cases were pending between them. He also stated that there was no street light in the place of occurrence. The identity of the said informant could not be ascertained. Hence, there is no sufficient cogent evidence to believe that he saw any person in the place of occurrence. He also failed to mention the names of the accused persons and the respective role played by each of them. This witness stated that he had proceeded to the place of occurrence and then the accused persons had ran away. This statement does not indicate that PW-1 had seen the accused persons assaulting the deceased. Of course, PW-1 did not state that he had seen the accused persons assaulting the deceased. That apart, it being a dark night, non availability of any source of light also indicates that he did not see the assailants. PW-1 clearly stated that he, along with other members of his family, had visited the place of occurrence and carried the deceased to their house. PW-1, PW-2 and PW-3, who were the brothers of the deceased, did not whisper anything about any disclosure, made by the deceased, regarding the identity of the assailants. Their silence regarding the dying declaration, coupled with PW-1's failure to mention about the alleged dying declaration in the FIR (Ext. 1) as well as in the GD entry i.e. Ext. 8 and Ext. 9 raises serious doubt about the prosecution version relating to the dying declaration. 30. Mr. Anowar Hussain, another brother of the deceased and PW-1, deposing as PW-2, stated that hearing hue and cry, he came out from his house and heard a Motor cycle rider shouting that the deceased was assaulted. He further stated that, on being so informed, he rushed to the place of occurrence and from a distance of about 2 poles (i.e. about 24 ft.), in the focus of the light of an incoming vehicle, saw the appellants Kadir Ali, Honu Ali (alias Md. He further stated that, on being so informed, he rushed to the place of occurrence and from a distance of about 2 poles (i.e. about 24 ft.), in the focus of the light of an incoming vehicle, saw the appellants Kadir Ali, Honu Ali (alias Md. Farzul Hussain), Gani Ali and Kala Ali assaulting his elder brother i.e. the deceased with dao, dagger, axe etc. and that alarm being raised by him from the place of occurrence, the accused persons had fled the place. He also stated that they carried the deceased to their house and from the Hajo P.H.C. and to the GMCH. 31. In his cross-examination, this witness stated that hearing the alarm, raised by about 7 (seven) persons, namely, 1. Anowar Uddin, 2. Islam Uddin (PW-1), 3. Ansel Ali (PW-3), 4. Ms. Chayan Bhanu (PW-5) i.e. their mother, 5. Md. Lokman Ali (not examined), 6. Md. Sontara (PW-14) and 7. Ms. Nazitara (PW-15) i.e. their sister had rushed to the place of occurrence simultaneously. From the evidence of PW-2, it appears that he could not identify the bike rider, who is alleged to have informed him (PW-2) about the incident. It is found that PW-1, PW-2 and PW-3 and others had rushed to the place of occurrence at the same time. PW-1 claimed that a person, who was on move, had raised the alarm. But, PW-2 stated that a motor bike rider had shouted about the incident. Though PW-2 mentioned about the biker, he did not state anything about the particulars of the said informant. If the informant was riding a motor cycle, PW-1, who also came out from his house along with PW-2 and PW-3 ought to have mentioned about the said bike riders. But, PW-1's evidence does not indicate that the said informant was a bike rider. Hence, there is no corroboration in the evidence of PW-1 and PW-2 regarding the presence of the said informant. Their said evidence about such information can't be accepted without doubt. This witness (PW-2), who, simultaneously, proceeded towards the place of occurrence, together with his brothers, sisters, mother and others, claimed to have seen the accused persons assaulting the deceased from a distance of 24 ft., in the focus of light of an incoming vehicle (car). Their said evidence about such information can't be accepted without doubt. This witness (PW-2), who, simultaneously, proceeded towards the place of occurrence, together with his brothers, sisters, mother and others, claimed to have seen the accused persons assaulting the deceased from a distance of 24 ft., in the focus of light of an incoming vehicle (car). His failure to state about the particulars of the vehicle, the role played by each of the accused persons, the type of weapons, used by each of them, raises doubt about his evidence regarding involvement of the accused persons. Though the PW-2 claimed to have visited the place of occurrence, along with PW-1, PW-5, PW-14 and PW-15, he has not whispered anything regarding presence of PW-4 and also about the dying declaration, alleged to be made before PW-4, PW-5, PW-14 and PW-15. As all of them, who were members of the same family, had reached the place of occurrence simultaneously, they ought to have corroborated each other on vital points i.e. regarding involvement of accused persons, the dying declaration and the availability of the vehicle i.e. source of light. PW-2 denied the suggestion, put to him on behalf of the defence, that before the Police he did not state that, from a distance of 2 poles from the place of occurrence he could see in the focus of the light of a vehicle, coming from the opposite direction, the accused persons assaulting the deceased. This omission, which was a major omission, stood proved through the I.O. i.e. PW-16, who stated that the PW-2 did not tell him that he had seen the accused persons assaulting the deceased, in the focus of the light of a vehicle, coming from the opposite direction. PW-1, who also accompanied PW-2, PW-3 to the place of occurrence did not state anything regarding the availability of a vehicle and witnessing the accused persons in the place of occurrence as well as about the dying declaration. 32. In our considered opinion, said omission was a major one, which raises serious doubt about the veracity of the evidence given by PW-2. Hence, his evidence that he had seen the accused persons assaulting the deceased, in the focus of the light of a vehicle was a statement, made for the first time, at the trial. 32. In our considered opinion, said omission was a major one, which raises serious doubt about the veracity of the evidence given by PW-2. Hence, his evidence that he had seen the accused persons assaulting the deceased, in the focus of the light of a vehicle was a statement, made for the first time, at the trial. This belated disclosure indicates that he had developed the prosecution case by trying to implicate the accused persons with the alleged crime. The failure of PW-2 to disclose about the presence of a vehicle, at the first point of time i.e. at the time of his examination under Section 161 Cr.P.C. coupled with the failure of the Investigating Officer to collect the particulars of the said vehicle and also to seize the same, raises doubt about the availability of any source of light (vehicle) in the place of occurrence. 33. PW-3, another brother of the deceased also stated that from a distance of about two tars (i.e. about 24 ft) in the focus of light of a vehicle, coming from the opposite direction, he had seen the appellants assaulting the deceased. Hence, it is clear that both PW-2 and PW-3 were together. But, PW-2's evidence stood contradicted by the PW-3. According to PW-3 except the brothers, i.e. PW-1, PW-2 and PW-3, none had visited the place of occurrence. But, PW-2 stated that about 7 (seven) persons including PW-1, PW-3, PW-5, PW-14 and PW- 15 and another i.e. Lokman Ali (not examined) had gone to the place of occurrence and found the deceased in injured condition. That apart, PW-1, who also accompanied PW-2 and PW-3 to the place of occurrence remained silent about the availability of a vehicle and seeing the accused persons, assaulting the deceased. In our considered opinion, the said omission amounts to major contradiction resulting inconsistency in the evidence given by PW-1, PW-2 and PW-3, on vital point. The said contradictory evidence raises serious doubt about the presence of the said witnesses in the place of occurrence. It is also doubtful if PW-2 and PW-3 had seen the appellants in the focus of light of a vehicle. 34. Mr. The said contradictory evidence raises serious doubt about the presence of the said witnesses in the place of occurrence. It is also doubtful if PW-2 and PW-3 had seen the appellants in the focus of light of a vehicle. 34. Mr. Habib Ali, maternal uncle of the deceased, deposing as PW-4, stated that, he from a distance of 60 ft., from the place of occurrence, had seen in the focus of light of a vehicle, moving in the same direction, the appellants had crossed him and that he found the deceased lying in injured condition, in the gate of Abdul Gani (appellant). So, when this witness was at a distance of 60 ft. from the place of occurrence the accused persons had crossed him. This indicates that he did not see the accused persons assaulting the deceased, inasmuch as, by the time the vehicle had arrived at the place of occurrence the accused persons had already crossed 60 ft distance from the place of occurrence. The vehicle, mentioned by PW-2, PW-3 and PW-4, was the same one. According to PW-2 and PW-3, the vehicle was coming from the opposite direction. Hence, PW-4 and PW Nos. 2 & 3 were moving in opposite direction i.e. PW-2 and PW-3 were coming to the place of occurrence from the direction opposite to the PW-4. Therefore, if the PW-4 had met the accused persons at a place of 60 ft away from the place of occurrence and if PW-2 and PW-3 had seen the accused from a distance of two poles, then it can be calculated that, by the time the vehicle had arrived in the place of occurrence, both PW-2 and PW-3 were at a distance of 24 ft. and the PW-4 was at a distance of 60 ft. away from the place of occurrence. As they were moving to the place of occurrence from opposite directions, the gap (i.e. distance) between PW-4 in one side and PW-2 and PW-3 i.e. the other side was about 84 ft (60 + 24). Therefore, before PW-2 and PW-3 could reach the spot, which was 24 ft. away from the place of occurrence, the accused persons had already crossed 60 ft. distance from the place of occurrence. According to the PW-2 and PW-3, both of them went to the place of occurrence from their house, at the same time. Therefore, before PW-2 and PW-3 could reach the spot, which was 24 ft. away from the place of occurrence, the accused persons had already crossed 60 ft. distance from the place of occurrence. According to the PW-2 and PW-3, both of them went to the place of occurrence from their house, at the same time. Hence, the evidence of PW-2 and PW-3 that they had seen the accused persons, assaulting the deceased and that alarm being raised by them, the accused persons had fled the place of occurrence is not believable, inasmuch as according PW-4, the accused persons had already crossed a distance of 60 ft. from the place of occurrence. That apart, if PW-4 is believed, the accused persons had moved 60ft away from the place of occurrence the vehicle had left. Hence, it is not believable that PW-2 and PW-3 had seen the accused persons assaulting the deceased, in the focus of the light of a vehicle from a distance of 24 ft. Surprisingly, though PW-2, PW-3 and PW-4 claimed to have seen the accused persons in the focus of the light of a vehicle, they failed to give any particulars of the said vehicle. The vehicle was not seized. This lapse and failure of the I.O. to seize the said vehicle raises doubt about the very existence of any such vehicle i.e. source of light at the place of occurrence. Hence, it is doubtful as to whether the accused were seen in the focus of the light of a vehicle. 35. Further, according to PW-3, no other persons, except the three brothers, had arrived at the place of occurrence and that they (i.e. the brothers) took the deceased to their house. But, according to PW-2 (another brother of PW-3) in total 7 (seven) persons i.e. the three brothers, their mother, their two sisters and one person namely Lokman Ali had arrived at the place of occurrence. While PW-2 ruled out the presence of PW-4, PW-3 also ruled out the presence of their mother, their sisters, Lokam Ali and PW-4. But, PW-4 stated that, before his arrival, at the place of occurrence, PW-1, deceased's brother Mr. Chana (not examined), PW-1's younger brother, their mother (PW-5) had reached the place of occurrence. PW-4 clearly stated that, in total, five persons had arrived at the place of occurrence. But, PW-4 stated that, before his arrival, at the place of occurrence, PW-1, deceased's brother Mr. Chana (not examined), PW-1's younger brother, their mother (PW-5) had reached the place of occurrence. PW-4 clearly stated that, in total, five persons had arrived at the place of occurrence. This witness ruled out the presence of PW-14 and PW-15 i.e. the two sisters of the deceased and one of their brother i.e. either PW-2 or PW-3. Because, according to PW-4, three brothers i.e. PW-1, PW-1's younger brother and one Chana (brother), he himself and the mother (PW5) of the deceased had arrived at the place of occurrence. None of the PW-1, PW-2 and PW-3 stated about the presence of Mr. Chana. On the other hand, as discussed above, PW-3 ruled out the presence of PW-4, PW-5, PW-14 and 15 in the place of occurrence. Hence, the said contradictory evidence, given by the witnesses aforesaid, raises serious doubt about their presence in the place of occurrence, at the time of incident. Their said contradictory evidence, on material point, fails to inspire confidence to believe that they seen the accused persons assaulting the deceased. 36. With regard to the dying declaration also, we have noticed major discrepancies in the evidence given by the witnesses. Dying declaration being a weak piece of evidence and there being no scope to cross examine the maker of such statement, evidence regarding dying declaration is to be accepted with great care and precaution. For accepting such evidence, the persons, before whom the dying declaration, is alleged to be made must be credible and trustworthy. Any doubt about the trustworthiness of such witness will make it hard to accept the evidence regarding dying declaration. PW-3, who claimed to have arrived at the place of occurrence and driven away the accused persons, by raising alarm, clearly stated that they had carried the deceased to their house and hospital, but none of the other brothers of the deceased, had visited the place of occurrence. The said evidence given by, none other than one of the brothers of the deceased, negated the evidence of PW-4, PW-5, PW-14 and PW-15, that they had arrived at the place and that the deceased was in injured condition. The said evidence given by, none other than one of the brothers of the deceased, negated the evidence of PW-4, PW-5, PW-14 and PW-15, that they had arrived at the place and that the deceased was in injured condition. If the evidence of PW-1 and PW-3 are believed then the evidence of PW-2, PW-4, PW-5, PW-14 and PW-15, that they had met the deceased at the place of occurrence can't be believed. 37. According to PW-2, he along with PW-1 and PW-3, their mother PW-5 and their sisters PW-14 and PW-15 reached the place of occurrence, simultaneously and that finding him in injured condition, they carried the deceased home. In view of the above, all the said witnesses were present together near the deceased at the place of occurrence. PW-1, who lodged the written information (Ext. 1) and information (i.e. the GD Entry, Ext. Nos. 8 and 9) to the Police on the night of occurrence did not state anything regarding dying declaration. If any dying declaration was made, the said brothers i.e. PW-1, PW-2 and PW-3, would have heard and disclosed the same. 38. The silence of PW-1, PW-2 and PW-3, who were vital witnesses, regarding the dying declaration, raises doubt as to whether the dying declaration was made. That apart, neither in the Ext. 1 (written information) nor in the GD Entries (Ext. Nos. 8 & 9), no mention was made about the dying declaration. If the deceased had disclosed the names of the culprits, by making dying declaration at the place of occurrence, then, in the First Information Report i.e. FIR, such a vital fact ought to have been disclosed. Withholding of such information raises doubt about the dying declaration. 39. Raising serious doubt about the evidence given by PW-4, PW-5, PW-14 and PW-15, relating to the dying declaration, PW-3 one of the brothers of the deceased, who also visited the place of occurrence and carried the deceased to their house ruled out the very presence of PW-4, PW-5, PW-14 and PW-15 at the place of occurrence and meeting the deceased in the place of occurrence. Hence, the evidence given by PW-4, PW-5, PW-14 and PW-15, that the deceased had made dying declaration disclosing the identity of the assailants, is not believable. 40. Hence, the evidence given by PW-4, PW-5, PW-14 and PW-15, that the deceased had made dying declaration disclosing the identity of the assailants, is not believable. 40. That apart, in ordinary course, if the deceased had disclosed the names of the culprits, then such an important information, relating to the death of the deceased, would have been shared and got circulated amongst other members of the family, well wishers and villagers etc. But the brothers of the deceased i.e. PW-1, PW-2 and PW-3, who were all along present with the deceased, were silent in this regard. Their silence negates the prosecution version regarding dying declaration. Even, PWs.-6, 7, 8, 9, 10 and 11, who also visited the house of the deceased, stated that they had heard that someone (persons) had assaulted the deceased. Their said evidence indicates that there was no disclosure about the identity of the culprits. 41. In view of the above, we don't find it safe to hold that the deceased had disclosed the identity of the culprits indicating the involvement of the appellants, with the death of the deceased. On the other hand, Md. Faijul Rahman, deposing as DW-1, stated that since prior to the occurrence, appellant Mr. Abdul Kader was with him and that he (DW-1), coming to know about the occurrence, had visited the place of occurrence along with Mr. Abdul Kader, Mr. Mintu Kalita, deposing as DW-2, stated that, on the fateful day, while returning home, he saw a person lying in injured condition and after crossing the said injured and accused Mr. Gani and some other persons cutting firewood. Mr. Ghatlay Sheikh, who has been examined as DW No. 3, stated that, at the time of occurrence, accused Kala Ali was working with him at Dispur. Mr. Abdul Miah, deposing as DW No. 4, stated that, at the time of occurrence, accused Mr. Honu Ali, who was a student, was staying in his house at Hatigaon, Guwahati. Though the said defence witnesses were cross-examined, on behalf of the prosecution, their evidence could not be demolished. Hence, the said defence evidence also raises doubt about the involvement of the appellants. Further, according to PW-3, except the brothers i.e. PW-1, PW-2 and PW-3, none had visited the place of occurrence. But, PW-2 stated that about 7 (seven) persons, including PW-1, PW-3, PW-5, PW-14 and 15 and another i.e. Mr. Hence, the said defence evidence also raises doubt about the involvement of the appellants. Further, according to PW-3, except the brothers i.e. PW-1, PW-2 and PW-3, none had visited the place of occurrence. But, PW-2 stated that about 7 (seven) persons, including PW-1, PW-3, PW-5, PW-14 and 15 and another i.e. Mr. Lokman Ali (not examined) had gone to the place of occurrence and found the deceased in injured condition. That apart, PW-1, who also accompanied PW-2 and PW-3 to the place of occurrence, remained silent about the passing of a vehicle and assaulting the deceased by the accused persons. In view of the above, we find major contradiction and inconsistency in the evidence given by PW-1, PW-2 and PW-3 on vital point. The said contradictory evidence raises serious doubt about their presence at the place of occurrence. It is also doubtful that PW-2 and PW-3 had seen the appellants in focus of light of a vehicle. 42. As the burden of the defence is not so high as that of the prosecution, a doubt created by the defence evidence will entitle the accused persons to benefit of doubt. From the above discussed evidence, it appears that the evidence given by the prosecution witnesses and the defence witnesses raises doubt about the involvement of the appellants. 43. In view of what has been discussed above, we have no hesitation in concluding that the prosecution failed to prove the case, against the appellants, beyond all reasonable doubt Hence, the appellants are entitled to benefit of doubt. We find sufficient merit in this appeal. Accordingly, the appeal is allowed. The appellants (convicts) are acquitted and they be set at liberty forthwith, if not required in any other case. 44. Return the LCR.