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2017 DIGILAW 904 (CAL)

Amrit Singh Sardar v. State of West Bengal

2017-11-22

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Debasish Kar Gupta, J. This appeal is directed against judgment and order of conviction dated June 27, 2006 and sentence dated June 28, 2006 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Purulia in Sessions Trial No.14/2004 arising out of Sessions Case No.32/2004 convicting the appellants for commission of offence punishable under Sections 302/34 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentencing all of them to suffer imprisonment for life as also to pay fine of Rs.2000/- each in default of which to suffer simple imprisonment for six months. There was a further direction that 50% of the fine amount, if realised, be given to the parents of the deceased. 2. The backdrop of the case is as under in a nutshell:- On October 27, 2001 at 18.10 hours a written complaint was submitted in Manbazar Police Station by one Shaktipada Mahato son of Motiram Mahato, village-Kunrdih, District-Purulia (PW 1). According to the above written complaint, at about 14.00 hours on the aforesaid date the PW 1 received an information from one Nitu Majhi (PW 8) that the cousin of PW 1 namely, Amrit Mahato had been lying in a vacant place in between the forest of “Palash” and “Kutush” jungle known as ‘Punnadih’. According to the information, his left hand was almost amputed amongst other injuries on his left knee with cut mark of bleeding injuries on the right eye-brow and beneath the cheek of the left eye. On receipt of the above information, the PW 1 rushed to the aforesaid jungle along with Dilip, Bikash and Bhagbat (PW 3, PW 9 and PW 14) respectively, amongst other persons. On arrival at the aforesaid jungle, they found that the aforesaid Amrit Mahato was crying for water and on query it was disclosed by him that the appellants assaulted them with a ‘Vojali’. The PW 1 and others brought him to Manbazar Rural Hospital by hiring a car. The doctor of Manbazar Hospital declared him dead. 3. On receipt of the aforesaid written complaint, formal FIR bearing Manbazar P.S. Case No.29/2001 was drawn up on October 27, 2001 at 18.10 hours against the appellants for commission of offence punishable under Sections 302/34 I.P.C. after diarising the above information under G.D.E. no.815 dated October 27, 2001. 4. The doctor of Manbazar Hospital declared him dead. 3. On receipt of the aforesaid written complaint, formal FIR bearing Manbazar P.S. Case No.29/2001 was drawn up on October 27, 2001 at 18.10 hours against the appellants for commission of offence punishable under Sections 302/34 I.P.C. after diarising the above information under G.D.E. no.815 dated October 27, 2001. 4. The above case was entrusted to Madhab Chandra Mahato (PW 19), Sub-Inspector of Police, attached to Manbazar Police Station, District Purulia at the material point of time for investigation. He went to the Manbazar Hospital and conducted inquest examination over the dead body of the deceased person on June 27, 2001 at 18.25 hours on identification of the dead body by PW 1 and prepared the inquest report. The preliminary investigation revealed as incorporated in the inquest report, the cause of death of the aforesaid deceased person was the injuries inflicted upon his body by the appellants with the help of sharp cutting weapon. 5. The post mortem examination over the dead body of the deceased person was conducted on October 28, 2001 at 14.20 hours by Dr. Dipak Kumar Basak (PW 20), Medical Officer Surgeon, attached to Purulia Deben Mahato Sadar Hospital. According to the above post mortem report, the deceased sustained following external injuries on his body:- “1. Sharp cut injury through and through the left elbow joint only a tag of skin was attached. 2. 2” lacerated injury over the right eyebrow skin deep with abression of the forehead and cutaneous haemotoma. 3. Haemotoma over the chest and occipital region of the head.” 6. According to the above post mortem report the above external injury no.1 was possible to be caused by a sharp cutting weapon like axe or Vojali (dagger) and other injuries might have been caused by blunt weapon like medium size stones. The cause of death of the deceased in the opinion of PW 20 was due to shock and haemorrhage as a result of injuries sustained which were antemortem and homicidal in nature. 7. After completion of investigation, the PW 19 submitted charge sheet dated February 22, 2002 against the appellants for commission of offence punishable under Sections 302/34 I.P.C. On April 8, 2004 charge was framed against the appellants for commission of offence punishable under Sections 302/34 I.P.C. 8. 7. After completion of investigation, the PW 19 submitted charge sheet dated February 22, 2002 against the appellants for commission of offence punishable under Sections 302/34 I.P.C. On April 8, 2004 charge was framed against the appellants for commission of offence punishable under Sections 302/34 I.P.C. 8. After considering the oral evidence of twenty (20) prosecution witnesses apart from the documentary evidences and the statements of the accused persons recorded under Section 313 Cr.P.C. the impugned judgment, order of conviction and sentence were passed. 9. It is submitted by Mr. Mainak Bakshi learned advocate appearing for the appellants that the finding of the learned trial Judge was not based on the evidence of eyewitness. According to the impugned judgment, the appellants were held guilty of commission of offence on the basis of the circumstantial evidences including the alleged dying declaration of the deceased as surfaced from the evidence of PW 1, PW 3, PW 6, PW 11 and PW 14. 10. According to him, the aforesaid PW 1, PW 3, PW 6, PW 11 and PW 14 went to the place of occurrence on receipt of information from PW 8. But the above fact of receiving information was not proved beyond doubt in view of the evidence adduced by PW 8, who was declared hostile. 11. It is submitted by him that the presence of PW 6 at the place of occurrence was not proved in view of the evidence adduced by PW 1, PW 3, PW 11 and PW 14. It is also submitted by him that the evidence of PW 5 to the effect that he had seen the appellants moving towards Ghastoria village on the date of incident while he was sitting with PW 4 at the village path was not proved due to non-corroboration of his above statement with that of PW 4. 12. It is finally submitted by Mr. Bakshi that the learned trial Judge failed to examine the creditworthiness of the PW 1, PW 3, PW 11 and PW 14 in accordance with law so far as the dying declaration of the deceased before them was concerned. 13. Reliance is placed by Mr. Bakshi on the decisions of Kake Singh @ Surendra Singh vs. State of Madhya Pradesh, reported in AIR 1982 SC 1021 and Darshan Singh & Ors. 13. Reliance is placed by Mr. Bakshi on the decisions of Kake Singh @ Surendra Singh vs. State of Madhya Pradesh, reported in AIR 1982 SC 1021 and Darshan Singh & Ors. vs. State of Punjab, reported in AIR 1983 SC 554 in support of his above submissions. 14. It is submitted by Mr. Ranabir Roy Chowdhury, learned State advocate that leaving aside the evidence of PW 5, PW 6 and PW 8 the evidence adduced by PW 1, PW 3, PW 11 and PW 14 were creditworthy and the learned trial Judge found that the commission of offence by the appellants had been proved beyond all reasonable doubts. Taking into consideration the evidence of aforesaid 4 (four) prosecution witnesses and scrutinising the dying declaration of the deceased in accordance with law before the aforesaid prosecution witnesses. 15. It is also submitted by Mr. Roy Chowdhury that while scrutinising the evidence of PW 1, PW 3, PW 11 and PW 14 relating to the dying declaration of the deceased, the learned trial Judge took into consideration the evidence adduced by the PW 20 namely, Medical Officer, who had conducted the post mortem examination over the dead body of the deceased. 16. Reliance is placed by Mr. Roy Chowdhury on the decision of Parbin Ali & Anr. vs. State of Assam, reported in (2013) 2 SCC 81 in support of his above submissions. 17. Having heard the learned Counsels appearing for the respective parties and considering the facts and circumstances of this case we find that the prosecution case before the trial Court was based on circumstantial evidence. 18. The PW 1, PW 3, PW 6, PW 11 and PW 14 found the deceased in severely injured condition at the place of occurrence, which was a jungle nearby the village in which they resided, on the basis of the information given by the PW 8. The deceased was conscious at the point of time and on the basis of his verbal dying declaration with regard to the commission of offence of assaulting the deceased, the appellants were convicted. According to the evidence of PW 5, PW 9 and PW 4 found the appellants with blood stained on their apparels nearby the place of occurrence after a short period of time of commission of offence. 19. According to the evidence of PW 5, PW 9 and PW 4 found the appellants with blood stained on their apparels nearby the place of occurrence after a short period of time of commission of offence. 19. PW 8 did not support the above prosecution case of informing the PW 1, PW 3, PW 11 and PW 14 about the discovery of the deceased in a jungle nearby the village where they resided and as a result he was declared hostile. Though the PW 6 in his evidence stated that he had gone to the place of occurrence with PW 1, PW 3, PW 9 and PW 14 after finding the appellants nearby the place of occurrence with blood stained on their wearing apparels, the PW 4 in his evidence did not support the same. PW 4 was declared hostile on the prayer of the prosecution. That apart, none of PW 1, PW 3, PW 9 and PW 14 mentioned the name of the PW 6 to accompany them at the place of occurrence and his presence at the time of dying declaration of the deceased. 20. Therefore, in view of the facts and circumstances the sheet anchor of the prosecution case was the dying declaration of the deceased person before the PW 1, PW 3, PW 11 and PW 14. 21. A Constitution Bench of the Hon’ble Supreme Court took care of the juristic theory regarding acceptability of a dying declaration in the matter of Laxman vs. State of Maharashtra, reported in (2002) 6 SCC 710 . According to the settled principles of law laid down in the above decision a dying declaration is made in extremity when the person concerned is at the point of death and when every hope of this world is gone and that state of mind every motive to falsehood is silenced, the person concerned is induced by the most powerful consideration to speak only truth. But at the same breath the Hon’ble Supreme Court observed in the above decision that great caution must be exercised in considering the weight to be given to the species of evidence on account of the existence of a number of circumstances which may affect the truth. But at the same breath the Hon’ble Supreme Court observed in the above decision that great caution must be exercised in considering the weight to be given to the species of evidence on account of the existence of a number of circumstances which may affect the truth. For the aforesaid reasons the requirement of oath and cross-examination are dispensed with but in view of the situation that the accused has no scope of cross-examination, the Courts insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. In doing so, normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration takes into consideration medical opinion. However, in case of a conflict in between the evidence of eyewitness and the medical opinion the former should prevail. It has also been observed in the aforesaid decision that any adequate method of communication whether the words or by signs or otherwise would be sufficient provided the indication is positive and definite. Therefore, a dying declaration can be oral or in writing. The relevant portion of the above decision is quoted below:- “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite.” 22. In Prakash & Anr. vs. State of Madhya Pradesh, reported in (1992) 4 SCC 225 , the Apex Court observed that the member of family including the father were expected to ask the victim the name of the assailant at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the name of the assailant if he had recognised them. 23. It is noteworthy that in the matter of Kushal Rao vs. State of Bombay, reported in AIR 1958 SC 22 , the Hon’ble Supreme Court observed that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence. The above decision was repeated and reiterated in the matter of Kusa vs. State of Orissa, reported in AIR 1980 SC 559 and Meesala Ramakrishan vs. State of A.P., reported in (1994) 4 SCC 182 . 24. The above decision was repeated and reiterated in the matter of Kusa vs. State of Orissa, reported in AIR 1980 SC 559 and Meesala Ramakrishan vs. State of A.P., reported in (1994) 4 SCC 182 . 24. It is profitable to refer to another important decision of the Hon’ble Supreme Court in the matter of Puran Chand vs. State of Haryana, reported in (2010) 6 SCC 566 , that it is the duty of the Court to examine a dying declaration scrupulously with a microscopic eye to find out whether dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of the investigation or which may be negligent while recording the dying declaration. 25. Coming back to the case at hand apart from the PW 1 and PW 3 who were the relations of the deceased namely, uncle and cousin brother and PW 14, who was a co-villager and natural witness, was present at the time of dying declaration. According to his evidence, the deceased was found lying with injuries on his forehead and face and with his left had cut with profuse bleeding at the jungle of Kunrdih. On their query, the deceased told them that the appellants assaulted him causing aforesaid injuries after consultation amongst the aforesaid persons present at the place of occurrence at that point of time. The deceased was shifted to Manbazar Hospital in a vehicle. Five (5) minutes after their arrival at the aforesaid hospital, the doctor namely, PW 20 came to the above hospital and after examination of the deceased he declared him dead. He was one of the witnesses of the post mortem report. 26. He was not shaken in the cross-examination. His above evidence was fully corroborated with those of the PW 1 and PW 3 without any deviation or departure. After looking up to the medical opinion of PW 20 we find that the external injury no.1, i.e., “Sharp cut injury through and through the left elbow joint only a tag of skin was attached.” was possible to be caused by a sharp cutting weapon like axe or Vojali (dagger). After looking up to the medical opinion of PW 20 we find that the external injury no.1, i.e., “Sharp cut injury through and through the left elbow joint only a tag of skin was attached.” was possible to be caused by a sharp cutting weapon like axe or Vojali (dagger). According to his evidence, the case of death of the deceased was due to shock and haemorrhage as a result of injuries mentioned which were antemortem and homicidal in nature. 27. In the aforesaid facts and circumstances we are not inclined to accept the submissions made on behalf of the appellants that the statements of the close relations as also PW 14 made before the Court cannot be accepted so far as the dying declaration of the deceased was concerned. We do not find it necessary to interfere with the impugned judgment, order of conviction and sentence. 28. The distinguishable facts and circumstances in the matter of Darshan Singh (supra) was that the vital organs of the deceased like peritoneum, stomach and spleen were completely smashed and there were remote chances of his remaining conscious after receipt of the third injury. As a result the evidences in respect of dying declaration did not inspire confidence of the Court so as to make safe to act upon it. 29. In the matter of Kake Singh @ Surendra Singh (supra) the consciousness of the deceased at the time of alleged dying declaration was in doubt in view of the injury sustained by the deceased unlike the instant case. Therefore, the aforesaid decision did not help the appellant in any way. 30. This appeal is, therefore dismissed. 31. Let this judgment together with the Lower Court’s records be sent back to the learned Court below expeditiously. 32. Urgent photostat Certified Copy of this judgment, if applied for, be given to the parties, on priority basis. Md. Mumtaz Khan, J. : I agree.