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2019 DIGILAW 1373 (GAU)

Kitab Ali Talukdar v. State Of Assam

2019-12-19

MIR ALFAZ ALI, NANI TAGIA

body2019
JUDGMENT : Mir Alfaz Ali, J. Heard learned counsel, Mr. M.H. Ahmed for the appellant and learned Addl. P.P., Ms. S. Jahan for the State-respondent. 2. This appeal is directed against the judgment and order passed by the learned Addl. Sessions Judge, Bajali in Sessions Case No.272/2013, whereby, the learned Sessions Judge convicted the appellants under section 302 IPC read with Section 34 IPC and sentenced them to imprisonment for life and fine of Rs.5,000/- with default stipulation. 3. As per prosecution case on 05-06-2001 at about 7.30 pm, when the deceased (brother of the informant) was going to the house of his grandfather, the present appellant along with co-accused Nazimuddin accosted the deceased. The present appellant pressed the neck of the deceased and the co-accused Nazimuddin stabbed on the chest of the deceased with a sharp knife. Hearing alarm raised by the deceased, the informant (PW-1) rushed to the place of occurrence and tried to hold the deceased, who gradually became unconscious and died. On being asked by the PW-1 as to who had inflicted the injury, the deceased told that it was done by the accused persons. The FIR (Ext.-1) was lodged by PW-1, Sabed Ali, on the basis of which, police registered Barpeta PS Case No. 318/2001 u/s 302/341 IPC and commenced investigation. In course of investigation, the statement of the witnesses were recorded, inquest report was prepared by Sub-Inspector of Police, Ratan Bhuyan and the body was sent for post mortem examination. Dr. Jogendra Nath Das (PW-5) conducted the post mortem examination on the body of the deceased. 4. The autopsy doctor (PW-5), who conducted post mortem examination found the following injuries on the person of the deceased :- 1. Perforating injury in front of upper part of the left side of the chest which perforates apex of the left lung. 2. Perforating injury in the pre-cordial region which perforates the heart at the anterior wall. 5. The doctor opined that cause of death was shock and haemorrhage due to the injuries sustained. The doctor further opined that death occurred immediately after the injuries. 6. On completion of investigation charge-sheet was laid against the appellant u/s 302/34 IPC. The co-accused Nazimuddin absconded and eventually the present appellant stood trial. 7. In course of trial, charge was framed against the present appellant u/s 302/34 IPC, to which he pleaded not guilty. The doctor further opined that death occurred immediately after the injuries. 6. On completion of investigation charge-sheet was laid against the appellant u/s 302/34 IPC. The co-accused Nazimuddin absconded and eventually the present appellant stood trial. 7. In course of trial, charge was framed against the present appellant u/s 302/34 IPC, to which he pleaded not guilty. 8 (eight) witnesses were examined by the prosecution to bring home the charge and on appreciation of evidence, the learned Addl. Sessions Judge convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 8. We have given due consideration to the submission made by the learned counsel and also scrutinized the evidence and materials brought on record. 9. On our assessment of the evidence, we find that PW-1, PW-2, PW-3, PW-4 and PW-7 claimed to be the eye witnesses of the occurrence and the learned Addl. Sessions Judge also recorded conviction of the appellant basically relying on the testimonies of these five witnesses. 10. Pw-1, Sabed Ali, who lodged the FIR stated in his evidence, that at about 7 O'clock at night, while he was sitting in his house along with his wife PW-2, he heard someone crying and immediately he came out and found that appellant Kitab Ali and co-accused Nizamuddin were holding the deceased Jabed Ali. Having seen him, both of them had fled away. He further stated that he caught the deceased, who died within 4 to 5 minutes of the occurrence. According to him, before death, deceased told that Kitab Ali and Nazimuddin stabbed him with a dagger. He also stated that his wife (PW-2) also followed him to the place of occurrence. During cross-examination, it was elicited that, PW-1, his wife, mother and wife of the deceased were present at the time of occurrence. PW-2, wife of the PW-1, stated, that hearing some crying noise outside the house, she along with her husband (PW-1) came out and on reaching the place of occurrence, she had seen her husband (PW-1) holding the deceased Jabed. She further stated that PW-1 told, that appellant Kitab Ali and Nazimuddin (absconding accused) inflicted the injuries to the deceased. During cross-examination, she stated that she heard the scream "muk marise", (I am assaulted"). It was further elicited during cross-examination, that she did not see anyone with the deceased except her husband at the place of occurrence. 11. She further stated that PW-1 told, that appellant Kitab Ali and Nazimuddin (absconding accused) inflicted the injuries to the deceased. During cross-examination, she stated that she heard the scream "muk marise", (I am assaulted"). It was further elicited during cross-examination, that she did not see anyone with the deceased except her husband at the place of occurrence. 11. Pw-3 stated, that hearing hue and cry, he came out and found, that Sabed Ali (PW-1) was holding the deceased. He also stated that Kitab Ali and Nazimuddin inflicted the stab injuries to the deceased. During cross-examination, it was elicited that at the time of occurrence the night was dark. PW-4, wife of the deceased stated that hearing sound of crying, she herself PW-1 and Pw-2 came out and saw Kitab Ali and Nizamuddin fleeing from the place of occurrence after killing her husband with a dagger. She also stated that the deceased told her that Nizamuddin and Kitab Ali assaulted him with a dagger. During cross-examination, he stated to have heard the noise 'ish, ish." 12. Pw-6 came later and found the deceased with injuries. PW-7 stated that hearing hulla raised by deceased Jabed, he came out and witnessed that Kitab Ali and Nizamuddin were running away. PW-7 further stated to have seen the injury on the person of the deceased. 13. A dispassionate scrutiny of the oral testimonies of the aforementioned prosecution witnesses shows that though, PW-1, Sabed Ali stated in his evidence that hearing noise outside the house, he came out and found Kitab Ali and Nizamuddin holding the deceased and seeing him both of them had fled away from the place of occurrence, his statement in court appears to be inconsistent with his statement made in the FIR. In the FIR, PW-1 stated to have seen the accused persons inflicting the injuries. As per his version in the FIR, the present appellant pressed the neck of the deceased and the co-accused (absconding) inflicted the stab injuries. The statement of this witness was also recorded u/s 164 CrPC, wherein he has given a different version and stated that on his arrival at the place of occurrence, he had seen the accused Kitab Ali and Nizamuddin standing near the deceased and on seeing him, both of them left the place of occurrence. The statement of this witness was also recorded u/s 164 CrPC, wherein he has given a different version and stated that on his arrival at the place of occurrence, he had seen the accused Kitab Ali and Nizamuddin standing near the deceased and on seeing him, both of them left the place of occurrence. PW-1 also stated in his statement recorded u/s 164 CrPC that the deceased told that Nizamuddin and Kitab Ali had hacked him with a dagger. What therefore, transpires from the oral testimony of the PW-1 is that he stood contradicted with his previous statement on material facts. The oral testimony of the PW-2 that she and her husband (PW-1) came out together again belies the claim of the PW-1 of being an eye witness of the occurrence, inasmuch as, according to PW-2, she did not see anyone, at the place of occurrence except the deceased and PW-1. 14. According to PW-4, wife of the deceased, she herself, PW-1 and PW-2 came together to the place of occurrence and saw Kitab Ali and Nizamuddin fleeing away after killing the deceased. The oral testimony of PW-1, PW-2 and PW-4 are taken together will show, that either none of them had seen the occurrence or they were trying to suppress the real genesis of the occurrence. This apart, the evidence of PW-4 that at the time of occurrence night was dark further creates doubt about the claim of PW-1,PW-2 and PW-4 that they have seen the occurrence. Apparently PW-1 reached the place of occurrence before the others, though they stated to have come out together. If the evidence of PW-1 is disbelieve, then it belies the entire oral testimony of PW-2, PW-4 and PW-7 as regards their claim of witnessing the appellant and the co-accused having fled away from place of occurrence. 15. On careful analysis of the testimonies of PW-1, PW-2, PW-3, PW-4 and PW-7, we find that all these five witnesses arrived at the place of occurrence after the occurrence and they did not have the opportunity to witness the occurrence or at least their testimonies of having witnessing the occurrence is highly doubtful. Once the so-called eye witness's account is rejected the prosecution is left with only the dying declaration as deposed by PW-1, PW-4 and PW-7. 16. Once the so-called eye witness's account is rejected the prosecution is left with only the dying declaration as deposed by PW-1, PW-4 and PW-7. 16. Although PW-1 stated that the deceased made a dying declaration before him, as per his evidence in court, the deceased told that Kitab Ali and Nizimuddin stabbed him with a dagger. Whereas, as per his statement in the FIR, the deceased stated, that the injuries were caused by these two persons. The statement of the PW-1 regarding dying declaration as stated during statement recorded u/s 164 CrPC also differs from his version in court. PW-4, who apparently reached the place of occurrence later, also deposed about a dying declaration. According to her, the deceased told that Nazimuddin and Kitab Ali assaulted him. 17. In the opinion of the doctor death of the deceased was instantaneous. PW-1 also stated that within 4 to 5 minutes the deceased died. What we notice from the evidence of PW-1 in various stages of the proceeding is that there is no consistency with regard to the words, allegedly uttered by the deceased. The evidence of PW-4 as regards the oral dying declaration also does not inspire confidence for the reasons, that PW-1, who arrived at the place of the occurrence before any other person, stated, that immediately after making the dying declaration, the deceased died. Though oral dying declaration in a given case can be the basis of conviction, the oral dying declaration by and large is considered to be very weak kind of evidence. Unless an oral dying declaration is proved beyond all reasonable doubt and free from blemish and suspicion, it is very unsafe to rely upon such dying declaration. 18. The Apex court in Darshana Devi Vs. State of Punjab, (1995) Supp4 SCC 126, had made it clear that even though, an oral dying declaration can form the basis of conviction in a given case, but such dying declaration has to be trustworthy and free from blemish and suspicion and inspire confidence. The reproduction of the exact words in the oral dying declaration in such case is also very important. 19. In Waikhom Yaima Singh vs. State of Manipur, (2011) 13 SCC 125 , the Apex Court held that if the exact words uttered by the deceased are not available, then, the oral dying declaration cannot be relied upon. The reproduction of the exact words in the oral dying declaration in such case is also very important. 19. In Waikhom Yaima Singh vs. State of Manipur, (2011) 13 SCC 125 , the Apex Court held that if the exact words uttered by the deceased are not available, then, the oral dying declaration cannot be relied upon. In the instant case, we find two dying declarations. one dying declaration made before the PW-1 and the other before the PW-4 and both the dying declarations differs. The dying declaration made by the deceased, as deposed by PW-1 before the court, was not consistent with his statement recorded u/s 164 CrPC as well as the FIR. The evidence of the doctor that death of the deceased was instantaneous further creates doubt as to whether the deceased was in a position to speak when the PW-1 and PW-4 arrived at the place of occurrence. Again the testimony of PW-1 belies the claim of PW-4 regarding the oral dying declaration. 20. In view of the glaring inconsistencies as to the contents of the dying declaration as deposed by PW-1 and Pw-4, no credibility can be attached to the oral testimony of PW-1 and PW-4 as regards the dying declarations. Once the oral testimony of PW-1, PW-2, PW-4, PW-5 and PW-7 and the so-called dying declarations are discarded, prosecution is left with no evidence to prove the charge against the appellant. Therefore, having considered the facts and circumstances of the case, we are of the considered opinion, that prosecution evidence was grossly inadequate to establish the charge against the appellant beyond reasonable doubt or at least the appellant is entitled to the benefit of doubt, and as such, in our considered opinion, the conviction and sentence of the appellant cannot be sustained. Accordingly we set aside the conviction and sentence of the appellant and allow the appeal. 21. The bail bond, if any, in respect of the present appellant stands discharged. 22. We do not interfere with the order passed by the learned Sessions Judge in the impugned judgment to the extent of compensation to be paid to the victim or the dependent/dependants of the victim u/s 357-A CrPC. 23. Send back the LCR.