JUDGMENT
Ranjan Gogoi, J.
1. This appeal is directed against the judgment and order dated 26.3.1999 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 27/98. By the aforementioned judgment and order, the two accused appellants before us have been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000 each in default to suffer further rigorous imprisonment for one year.
2. The case of the prosecution, in short, is that on 27.8.1997 at about 5 A.M., P.W. 2 Madan Mohan Das lodged a FIR in the Hailakandi Police Station stating that at about 10.30 P.M. of the previous day, i.e., 26.8.1997, on hearing hue and cry towards the north-western side of his house, he rushed in that direction and found his nephew, the deceased Nihar Ranjan Das in a pool of blood. In the First Information Report, it has been alleged, that the deceased Nihar had reported to the first informant, in the presence of one Ajir Uddin (PW 4) and Nasir Uddin (PW 3) and several other persons, that the accused-appellants Ranjan and Aftab has assaulted him. It was further mentioned in the FIR that the deceased Nihar became unconscious thereafter and he was put in a pool cart belonging to one Sunil Das (PW 6) for being taken to the hospital but on the way, the deceased succumbed to his injuries.
3. That on the basis of the aforesaid FIR, Hailakandi Police Station Case No. 0278/97 was registered and investigation of the case commenced. The Investigating Officer while going to the place of occurrence, found the deadbody being brought in a hand cart. Thereafter, inquest was held and the deadbody was sent for postmortem examination. The Investigating Officer visited the place of occurrence and prepared a Sketch Map (Ext. 4). The statements of a large number of persons were recorded by the police in the course of investigation and the accused-appellants were also arrested. On completion of the investigation, charge sheet was submitted against the accused-appellants. The case being exclusively triable by Court of Sessions, it was committed to the Court of the Sessions Judge, Hailakandi where a charge under Section 302 of the Indian Penal Code was framed against each of the accused-appellants. As the accused-appellants claimed to be innocent, the trial commenced, in the course of which, the prosecution examined as many as 8 (eight) witnesses including the doctor who performed the postmortem examination and the investigating officer. The defence did not adduce any evidence. At the conclusion of the trial, the learned Sessions Judge, Hailakandi by the judgment and order dated 26.3.1999 convicted and sentenced the accused as aforesaid. Aggrieved, the instant appeal has been filed.
4. PW 1 Dr. Ashit Mohan Shome performed the postmortem on the deadbody of the deceased Nihar Ranjan Das. The postmortem examination report has been proved by the prosecution as Ext. 1 in the case. According to PW 1, he found the following injuries on the body of the deceased :
“(1) One incised wound over left side of the face horizontal extending upto left ear 9 cm x 2 cm x 4 cm.
(2) Incised wound over left dorsum of the hand 2 cm x 1/2 cm x 1/2 cm.
(3) Incised wound over right scapula region 5 x 1 x 4 cm.
(4) Incised wound just below left scapula 3 x 1/2 x 1/2 cm.
(5) Incised wound over back of left shoulder 8 x 1/2 x 1/2 cm.
(6) Incised penetrating wound over lumber vertebra with fracture cutting spinal chord – 5 cm x 2 cm x 10 cm.
According to P.W. 1, injuries No. 1 to 5 are simple injuries caused by sharp weapon whereas injury No. 6 is a grievous injury also caused by sharp weapon.
5. P.W. 2 Sri Madan Mohan Das who lodged the FIR has testified that in the night of the day of occurrence around 10 P.M. as he was preparing to go to bed, ha heard the cry of his nephew, i.e., the deceased Nihar Ranjan Das, from the north western side of his house. According to this witness, thereafter he along with P.W. 7 and P.W. 5 (the mother anal sister of the deceased) proceeded in the direction from which the sound was coming with a torch light and after crossing Baraithali River, he found Nasir Uddin and Ajir Uddin, (P.Ws 3 and 4) standing on the read. This witness deposed that he heard the deceased shouting – ‘Ma Ma’ and on rushing towards the deceased, he found him in a pool of blood lying in the paddy field. The witness has further deposed that on being asked, the deceased in the presence of P.Ws 3, 4, 5 and one Dilip Das, had stated that the accused-appellants had assaulted him. It is further revealed from the deposition of P.W. 2 that the deceased was being taken to the hospital in a pool cart but on the way, near the polar bridge, he succumbed to his injuries. The police was informed about the incident by P.Ws 3 and 4 and another person by telephone from the house of one Jamir Uddin. This witness further deposed that subsequently, it had come to his knowledge that in the morning of the day of occurrence, the accused had gone to the Agriculture office with a sum of Rs. 60,000 for purchasing a tractor and that the occurrence took place while the deceased was returning to his house in the night.
In cross-examination, this witness had admitted that the place of occurrence was about 11/2 furlongs away from his house and further that about 100 people gathered at the spot and the dying declaration was made by the deceased before several other persons who have been named by this witness as Lalmohan, Dilip, Promesh and Sachimohan. In cross examination, P.W. 2 has further admitted that he had been sentenced to jail for a period of four years in connection with a murder case.
6. P.Ws 3 and 4 Nasir Uddin and Ajir Uddin who were examined by the prosecution as witnesses before whom the alleged dying declaration was made by the deceased, did not support the prosecution case and were, therefore, declared hostile. The aforesaid witnesses were cross-examined by the prosecution with regard to their previous statement made before the police. Both the aforesaid witnesses were also cross examined by the defence and in such cross examination, P.W. 3 had stated that the deceased Nihar was not in a position to talk when he, i.e., P.W. 3 had reached the spot.
7. P.W. 5 Miss Ratna Rani Das is the sister of the deceased. This witness deposed that in the morning of the day of occurrence, the deceased had gone to Hailakandi with an amount of Rs. 60,000 for purchasing a Power Tiller from the Agriculture office. According to this witness, at about 10 P.M., she heard a groaning sound from the north western side of her house and on hearing the alarm, she along with her uncle, P.W. 2 and her mother, P.M. 7 proceeded to the spot with a torch light and found the deceased lying in a pool of blood in the paddy field with injuries on his body. P.W. 5 has deposed that the deceased was given water and that the deceased had stated that he was assaulted by the accused appellants. P.W. 5 has further deposed that the said statement of the deceased was made in the presence of Ajir Uddin (P.M. 4) and Nasir Uddin (P.W. 3), Dilip Das, Promesh, Lalmohan and her uncle Madan Mohan Das (PW 2) as well as her mother, P.W. 7.
P.W. 5 was cross examined by the defence with regard to her previous statement made to the Investigating Officer. In her cross examination, she denied that she had earlier told the police that the deceased was not in a position to say anything.
8. P.W. 6 Sunil Das has been examined by the prosecution to prove that the deceased was put in a hand cart for being taken to the hospital and that he died on the say.
9. P.W. 7 Smt. Fulmati Das is the mother of the deceased. She has corroborated the evidence tendered by her daughter, P.W. 5. In cross examination, this witness stated that one Gias Uddin, a co-villager was the constant companion of the deceased and on the day of occurrence, Gias Uddin had accompanied her son to Hailakandi.
10. P.W. 8 Tapash Chakraborty, Sub-Inspector of Police is the Investigating Officer of the case. The Investigating Officer in the course of his deposition, has proved the Diary Statements of P.Ws 3 and 4 with regard to the dying declaration made by the deceased in their presence implicating the accused-appellants, which fact was sought to be denied by the said witnesses in Court. The cross-examination of this Investigating Officer has revealed that the house of P.W. 2, the first informant, was at some distance from the place of occurrence. In cross-examination, the Investigating Officer had stated that the statements made by P.Ws 5 and 7 (the sister and mother of the deceased) regarding the alleged dying declaration implicating the accused appellants in the course of their deposition were not stated by the said witness before the Investigating Officer. Such cross examination has further revealed that P.W. 5 had stated before the police that her brother, the deceased was not in a position to say anything.
11. Having set out the core of the evidence of the prosecution witnesses, we may now proceed to determine the culpability of the accused appellants and the tenability of the judgment and order of the learned Sessions Judge, under challenge in the present appeal.
12. Admittedly, there was no eye-witness to the occurrence as none has been examined by the prosecution. The prosecution has relied on an alleged dying declaration orally made by the deceased Nihar in presence of PWs 2, 3, 4, 5 and 7 to bring home the charge against the accused-appellants. A dying declaration, written or oral, if true and creditworthy, may be accepted by the Court as the sole basis for conviction, even without corroboration. In the last resort, it is the satisfaction of the Court with regard to the proof of the dying declaration, having regard to the totality of the facts and circumstances of a given case, that will determine the culpability of the person, accused of a crime. Having identified the principles, we may now proceed to apply the same to the facts of the present case.
13. The evidence of P.W. 1, the doctor who performed the postmortem examination, does not indicate that the deceased Nihar was in a position to raise an alarm and make a statement with regard to his alleged assailants after receiving the injuries which were found on his person. In fact, P.W. 1 was not examined on that point by the prosecution. The said fact would have a bearing to the otherwise proved fact that the house of P.Ws. 2 and 5 was at a distance of nearly 11/2 furlongs from the place of occurrence. Whether the groaning sound allegedly made by the deceased from the place of occurrence could travel 11/2 furlongs to reach the ears of PWs 2 and 5, would, therefore, continue to remain in doubt. PWs 3 and 4 were declared hostile by the prosecution and on reading the evidence of the said witnesses in entirety, we find the said two witnesses to be highly inaccurate and, therefore, unsafe to rely on. PWs 5 and 7, the sister and mother of the deceased, have been claimed by the prosecution to have been also present at the time when the deceased had made his dying declaration. P.W. 5, however, in her diary statement recorded by the Investigating Officer had stated that the deceased was not in a position to speak. P.W. 7, the mother in her diary statement did not tell the police that the deceased had reputed that he was assaulted by the accused-appellants. The aforesaid contradiction in the evidence of P.W. 5 and the omission in the evidence of P.W. 7 though not proved by the defence in the matter required by Section 145 of the Indian Evidence Act, are vital aspects of the case which cannot be altogether ignored in deciding the culpability of the accused-appellants. This would take us that the evidence of P.W. 2. P.W. 2, himself, had been convicted in an offence involving the death of some other person. Having regard to the above fact, we feel that it would be necessary to have some corroboration of the alleged oral dying declaration made by the deceased involving the accused-appellants, as testified by P.W. 2. No such corroboration is forthcoming. In fact, the evidence of the prosecution witnesses have clearly shown that the deceased had made the alleged dying declaration in the presence of several independent persons, i.e., Lalmohan, Dilip, Promesh and Sachimohan. None of the aforesaid independent witnesses have been examined.
It must also be noticed that the alleged weapon of assault was not seized by the police nor were the wearing apparels of the deceased seized. The Sketch Map prepared by the Investigating Officer and exhibited as Ext. 4 does not reveal any bleed marks at the place of occurrence. These are glaring defects in the investigation of the case which is bound to affect the prosecution version. In such a situation, we are of the considered view that it would be unsafe to convict the accused-appellants on the basis of the sole testimony to P.W. 2.
14. There is another aspect of the prosecution case which cannot be overlooked. The charge against the accused-appellants is under Section 302 of the Indian Penal Code. Section 34 of the Indian Penal Code has not been invoked. The prosecution evidence does not ascribe any particular injury found on the deadbody of the deceased to either of the accused appellants. In fact, it is not clear from the prosecution evidence as to which particular injury or injuries caused the death of the deceased. If Injury No. 6 is taken to be the fatal injury, which of the accused-appellants had inflicted the said injury, is not disclosed by the evidence of the prosecution witnesses. Unless the fatal injury can be ascribed to any one of the two accused-appellants, it is our considered view that the charge under Section 302 of the Indian Penal Code without the aid of Section 34 of the Indian Penal Code cannot be successfully brought home against either of the accused persons.
15. For the aforesaid reasons, we are inclined to interfere with the conviction and sentence recorded by the learned Court below. This appeal, therefore, stands allowed and the judgment and order dated 26.3.1999 passed by the learned Sessions Judge, Hailakandi in Sessions Case No. 27/98 stands set aside. The accused appellants be set at liberty forthwith, if they are in custody.