JUDGMENT
Aftab H. Saikia, J.
1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I. Uddin, learned Counsel appearing on behalf of the appellants and Mr. K. A. Mazumdar, learned Public Prosecutor, Assam.
2. Conviction of the 4 (four) appellants, namely, 1) Abdun Noor, 2) Md. Jaban Ali, 3) Musstt. Kali Bibi and 4) Musstt. Fatai Bibi @ Aftarun under Sections 148/323/448/302 IPC read with Section 149 IPC handed down by the learned Additional Sessions Judge (Adhoc), Karimganj by his Judgment and Order dated 17.6.2006 in Sessions Case No. 88/2003, whereby each of the convicted accused were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each in default to undergo additional two years simple imprisonment under Section 302 IPC read with Section 149 IPC, to undergo one year rigorous imprisonment under Section 323 IPC read with Section 149 IPC, to undergo three years rigorous imprisonment under Section 148 IPC read with Section 149 IPC and to undergo one year rigorous imprisonment under Section 448 IPC read with Section 149 IPC, has been assailed in this criminal appeal.
3. The prosecution case in brief is that on 5.1.2002 at about 10.00 a.m. accused persons namely, Abdun Noor, Soloi Bibi, Kali Bibi, Fatai Bibi and her husband and Wasid Ali assembled unlawfully and being armed with dao, rod, lathi and other dangerous weapons, they trespassed into the dwelling house of the informant, Md. Mostaque Ahmed, P.W. 2 and assaulted the informant, his nephew Fakar Uddin, another nephew Akhoi Mian and his wife causing grievous injuries to their persons and took away all the utensils from the house causing him a loss of Rs. 1,000/-. Thereafter, an ‘Ejahar’ was lodged with the Karimganj Police Station and on the basis of the same investigation ensued.
4. During investigation, injured Asaddar Ali @ Akhoi Mian died. After completion of investigation, police submitted chargesheet against all the accused persons namely, Md. Abdun Noor, Md. Wasid Ali, Mustt. Soloi Bibi, Md. Joban Ali, Musstt. Kali and Mustt. Fatai Bibi @ Aftarun under Section 147/448/ 323/302 IPC. As accused Musstt. Soloi Bibi also died, the case against her had to be dropped but the case against other accused persons was committed by the Committing Magistrate to the learned Court of Sessions being the case exclusively triable by the Court of Sessions.
5. The learned Sessions Judge, Karimganj, after hearing the learned Counsel for both sides framed charges under Sections 148/323/448/ 380/302IPC against the accused persons and the same was read over and explained to them, to which they pleaded not guilty and claimed to be tried. During trial, accused Wasid Ali was reported to be dead and the case against him had to be dropped. The case was eventually proceeded against the four appellants herein.
6. The prosecution examined as many as eight witnesses in support of its case. After closure of the prosecution’s evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded. Defence adduced none.
7. Upon hearing the learned Counsel for the parties and after appreciation of the material evidence on record so examined by the prosecution, the learned Judge imposed the aforementioned conviction and sentence upon the appellants.
8. Haying extensively heard the learned Counsel for the parties and having carefully gone through the impugned Judgment and Order as well as the deposition of all the witnesses, it appears that the learned Judge while arrived at the conclusion of conviction and sentence of the appellants as mentioned above, though all the independent witnesses so examined by the prosecution were declared to be hostile, relied heavily on the statements made by the prosecution witnesses, namely, P.W. 2, P.W. 3 and P.W. 4 and so recorded by the Police under Section 161 Cr.P.C.
9. It is settled law that the statement under Section 161 Cr.P.C. is not a substantive piece of evidence in view of the proviso of subsection-1 of Section 161 Cr.P.C. and the same can only be used for the limited purpose to contradict a witness in the manner laid down in the said proviso and hence the same is impermissible under the law. (See Baldev Singh v. State of Punjab , (Omkar Ndmdeo Jadhao and Ors. v. Second Additional Sessions Judge, Buldana and Anr. ), (Ram Swaroop and Ors. v. State of Rajasthan) reported in AIR 2004 SC 2943, (Rajendra Singh v. State of U.P. and Anr.) and (Tolar Sorum v. State of Arunachal Pradesh) reported in 2007 (4) GLT 905).
10. It is also transpired from the close scrutiny of the records that though the deceased, Asaddar Ali @ Akhoi Mian died after 5 days from the date of occurrence i.e. on 5.1.2002, no attempt whatsoever was ever made to record the dying declaration of the deceased/victim. It is admitted that the deceased was assaulted on 5.1.2002 and he died after 5 days of the incident and the same is also revealed from the evidence of the Doctor, P.W. 8, who conducted the autopsy on the dead body of the deceased on 11.1.2002.
11. This Court, in a case of Ganesh Gogoi v. State of Assam reported in 2008 GLT(Crl) 51 : 2008 (1) GUI 314, while examining the scope of non-recording of dying declaration of the deceased, who survived for several days, in para-17, has also observed as under:
17. It is also admitted and noted herein that the deceased was assaulted on 30.9.01 at about 11.30 a.m. and he died on 4.11.2001 succumbing to the injuries so inflicted upon him as per the medical evidence of P.W. 12. during this long gap of period no dying declaration was made by the deceased. Even no attempt has been made to record his dying declaration during the period he had undergone treatment in the Hospital. There is also no evidence on record that the deceased went into coma immediately after so called assault. Even P.W. 6 who examined the dead body of Bhogeswar Baruah (deceased) never stated that the patient was under coma rather he opined that the nature of injury was simple and individually.
12. In the case in hand, as already noted above, no dying declaration of the deceased was recorded during the period of his survival for five days. There is nothing on record to show that deceased was not in a position to speak and the same is evident from the deposition of P.W. 1, the Doctor, Dr. Khandakar Golam Hussain, who examined the deceased when he was under his treatment in injured condition on the very date of incident itself on 5.1.2002. Only reference was made by P.W. 1, in his evidence therein that the deceased was referred to Karimganj Civil Hospital, without mentioning his physical condition as to whether he could speak or not. Besides, in the instant case all the independent witnesses i.e. P.W. 2, P.W. 3 and P.W. 4 were declared as hostile witnesses by the prosecution. However, it is settled law that in case of hostile witnesses, portion of the evidence of hostile witnesses, which is consistent with the prosecution or defence case can be accepted. Fact, that the hostile witnesses resiled from their earlier statement made under Section 161 Cr.P.C. without giving any reason as to why the Investigating Officer would record statement under Section 161 Cr.P.C. incorrectly, raises doubts on their subsequent versions in favour of the accused. (See Bishu Das @ Jishu Das v. State of Assam 2005 (2) GLT196). In the case in hand, however, we do not find that any portion of such hostile evidence is consistent with the prosecution case for acceptance by the Court.
13. In view of the above, we are of the firm view that the prosecution has failed to prove the case beyond reasonable doubt. Consequently, the conviction and sentence of the appellants so imposed by the learned Additional Sessions Judge (Adhoc), Karimganj need to be interfered with and hence the same is hereby set aside and quashed.
14. The appellants be set at liberty forthwith if they are not wanted in connection with any other criminal case. In the result, this appeal succeeds and stands allowed.
15. Send down the LCR immediately.
