Mursalim Sk. @ Chimmu Sk. and Others vs The State of Jharkhand

This appeal is directed against the judgment of conviction and order of sentence dated 07.08.2003 and 11.08.2003 respectively passed by Ist Additional Sessions Judge, Pakur in Sessions Case No. 03 of 2002, whereby and where under, appellants are convicted u/s 302/34 of the Indian Penal Code for committing murder of Serajul Sk. and sentenced to undergo imprisonment for life. The case of prosecution, in brief, as per First Information Report is that on 24.04.2001, informant Ajibul Sk. (P.W. 6) heard rumour that his younger brother Serajul Sk. has been assaulted by some persons and thrown in a field situated at the village Nayagram. Thereafter, informant along with his sister Aima Bibi, brother-in-law Gaju Sk. and others went to the place of occurrence at Nayagram and found that Serajul Sk. was lying injured in the field. He further states that on query, his brother disclosed that at about 12 noon, after taking meal he was taking rest near the house of Niyamat Sk., eight persons namely, Mursalim Sk. @ Chimmu Sk., Khalik Sk., Ajibul Sk., Sabir Sk., Saifur Sk., Madhu Sk. and Ajim Sk. arrived. He further disclosed that Alam Sk. open fire from a pistol and exhorted others. He further disclosed that when he tried to run away, aforesaid persons chased and caught him near a Neem Tree, then after felling him on a plastic-sheet, Chimmu Sk. cut his left leg, Madhu Sk. cut his left wrist, whereas others namely, Khalik Sk. and Sabir Sk. inflicted cut injuries on his body and thrown him in the field assuming that he already died. Informant further stated that at about 4.00 P.M., while he was making arrangement for taking the injured to the hospital, he died. Thereafter, informant went to police station and lodged information.

On the basis of aforesaid information Maheshpur P.S. case No. 31/2001 dated 28.04.2001 instituted u/s 302/34 of the Indian Penal Code and police took up investigation. In course of investigation, police prepared inquest and, sent dead-body for postmortem examination. Police after completing investigation submitted charge-sheet against the appellants u/s 302/34 of the Indian Penal Code. It appears that cognizance was taken for the aforesaid offence and the case committed to the Court of Sessions, as the offence u/s 302/34 of the Indian Penal Code is triable by a Court of Session. After commitment, record of the case transferred to the file of Ist Additional Sessions Judge, Pakur for adjudication, who vide his order dated 09.04.2002 framed charge u/s 302/34 of the Indian Penal Code and explained the same to the appellants to which they pleaded not guilty and claimed to be tried.

During the trial, prosecution examined altogether 19 witnesses in support of its case. Prosecution also brought on record, the postmortem report (Ext. 1), Inquest Report (Ext. 2), Seizure-list (Ext. 3), Statement of Informant (Ext. 4) and formal F.I.R. (Ext. 5). After closure of the case of prosecution, learned court below examined and recorded the statement of appellants u/s 313 of the Cr.P.C. in which their defence is of total denial. It appears that after considering the evidence available on record, learned court below convicted and sentenced the appellants by the impugned judgment. Against that present appeal filed.

While assailing the judgment of the court below, Ms. Supriya Dayal, learned counsel for the appellants submitted that in the instant case, learned court below convicted the appellants on the basis of oral dying declaration of the deceased. She further submitted that alleged dying declaration cannot be accepted because the occurrence took place at about 12 noon and P.W. 5, P.W. 6, P.W. 12 and P.W. 15, who are witnesses of oral dying declaration, had reached at the place of occurrence at 3.00 P.M. She further submitted that the doctor P.W. 16 had found altogether 9 injuries on the person of deceased and gave opinion that deceased in all probability will die within half an hour if no medical aid given to him. She further submitted that thus when P.W. 5, P.W. 6, P.W. 12 and P.W. 15 reached at the place of occurrence, deceased was not alive. Therefore, question of making disclosure, about the occurrence, by the deceased does not arise. She further submitted that admittedly, aforesaid witnesses had inimical relation with the appellants. Thus, they have concocted a story with a view to falsely implicate appellants. She further submitted that statement of P.W. 14, who is also one of the relative of informant, cannot become the basis of conviction because he did not disclose the names of appellants, as the assailants of deceased. He identified them for the first time in court. Accordingly, she submitted that appellants are entitled to be acquitted in the present case.

On the other hand, learned Addl. P.P. submitted that in view of dying declaration of the deceased read with deposition of P.W. 14 who identified appellants in the dock as the assailants of deceased, prosecution had proved the charge levelled against the appellants beyond the shadow of all reasonable doubts. Thus, learned court below rightly convicted and sentenced the appellants in the present case. He further submitted that the impugned judgment of conviction and order of sentence do not require any interference in this appeal.

Having heard the submissions, I have gone through the records of the case.

P.W. 16 is doctor, who held autopsy on the dead body of deceased and found altogether 9 sharp-cut wounds on the different parts of the body. The doctor has opined that cause of death is shock and haemorrhage due to injury of blood vessel and head caused by sharp-cutting weapon. The evidence of doctor further finds support from the inquest report. Thus, we find that homicidal death of deceased has been proved. Now the question remains to be determined is, whether appellants had any hands in the commission of present crime? This bring us to consider the remaining evidence available on record.

From perusal of evidence available on record, we find that there are three sets of witnesses. P.W. 2, P.W. 3 and P.W. 13 (wife of informant) had claimed that they after hearing the incident went to the place of occurrence and found the deceased in injured condition, but they had not stated that the deceased disclosed anything about the occurrence. P.W. 5 (Samdhi of P.W. 13), P.W. 6 (informant), P.W. 12 (sister of informant) and P.W. 15, Furkuni Bibi (wife of deceased) had claimed that when they reached at the place of occurrence and made query from the deceased, he disclosed that appellants inflicted injuries on him by Bhujali. Thus, P.W. 5, P.W. 6, P.W. 12 and P.W. 15 are the witnesses of oral dying declaration. P.W. 14 Faiyaz Sk., brother-in-law of P.W. 12 claimed himself to be the eye witness of the occurrence and stated that while he was sitting under a tree at Nayagram in the noon, he saw 8 persons, who were assaulting Serajul (deceased) with Hasua and Lathi. However, he did not disclose the names of assailants in his deposition, but he had stated that the assailants of deceased were present in the dock.

It is well settled that a dying declaration can become sole basis for conviction without any corroboration, if it is found that the same is acceptable. It is equally well settled that dying declaration not being a deposition in court, neither made on oath nor in presence of accused and therefore, not tested by cross-examination is admissible in evidence as an exception to the general rule against the admissibility of hearsay evidence. Under the said circumstance, it is necessary for the court to closely scrutinise all the relevant circumstance for coming to the conclusion that dying declaration is acceptable and conviction can be based upon it. One of the important circumstance for the reliability of the dying declaration is to see as to whether deceased was in a fit state of mind and capable of making statement at that point of time when dying declaration had been recorded.

In the instant case, according to F.I.R., occurrence took place at about 12 O''clock in the noon. As per F.I.R. as well as according to the depositions, P.W. 5, P.W. 6, P.W. 12 and P.W. 15 arrived at the place of occurrence at 3.00 p.m. and found that deceased was alive and was able to speak. But P.W. 16 had stated that deceased received altogether 10 injuries and he died due to cutting of blood vessels and injury on his head. P.W. 16 further stated in his cross-examination that unless medical aid is given, person having received such injuries of profuse bleeding can survives only half an hour. Under the said circumstance, if deceased had received injuries at 12 O''clock and no medical aid given to him till the arrival of P.W. 5, P.W. 6, P.W. 12 and P.W. 15, in all possibility deceased must have been died by the time aforesaid witnesses reached at the place of occurrence. P.W. 6, who is brother of deceased, has admitted that the appellants had deposed against them in a murder case. It is also an admitted position that deceased had been convicted in the said murder case. Thus, it appears that there was prior enmity between the prosecution party and the appellants. Therefore, in all possibility P.W. 5, P.W. 6, P.W. 12 and P.W. 15 had concocted story, with a view to falsely implicate the appellants.

The aforesaid suspicion, regarding the truthfulness of the evidence of P.W. 5, P.W. 6, P.W. 12 and P.W. 15, became stronger in view of the statement of P.W. 2, P.W. 3 and P.W. 13 (wife of informant). P.W. 2 who is an independent witness had stated that he reached at the place of occurrence at 3.00 P.M. and in his presence P.W. 12 arrived. This witness further claimed that he put bandage on the injury of deceased but he had not stated that deceased disclosed anything about the incident in his presence. P.W. 3, who is also an independent witness had stated that he reached at the place of occurrence at 3.30 P.M. and he saw the dead-body of deceased. Thus, according to P.W. 3, when he reached at the place of occurrence, deceased had already died. P.W. 13 Hasina Bibi, who happens to be the wife of informant (P.W. 6) had stated that she reached at the place of occurrence alongwith P.W. 12 (Kausar Sk.) P.W. 6 (Azibul Sk.) and found that deceased was lying in the field. She further stated that at that time, deceased was breathing and demanding water. But this witness had not stated that deceased disclosed anything about the occurrence. Under the said circumstance, I find that P.W. 13, who is wife of informant (P.W. 6) gave a severe jolt to the claim of P.W. 5, P.W. 6, P.W. 12 and P.W. 15 that the deceased had disclosed the names of appellants as his assailants. Under the aforesaid circumstance, said oral dying declaration is not acceptable.

We further find illegality in the acceptance of aforesaid dying declaration, i.e. learned Sessions Judge while examining the appellants u/s 313 of the Cr.P.C., had not asked any question about the dying declaration. Thus, without giving any opportunity to the appellants, learned court below convicted the appellants on the basis of aforesaid oral dying declaration, which in our view is wholly illegal.

Now coming to the evidence to the P.W. 14, who claims himself to be the eye witness of the occurrence, it is worth mentioning that he is brother-in-law of P.W. 12. Thus, he was knowing appellants from before. During the examination-in-chief, this witness had not disclosed the names of appellants as assailants of deceased, but looking to them in the dock, he identified them as assailants of deceased. Therefore, aforesaid statement of P.W. 14 cannot become the sole basis for conviction of appellants in absence of any corroboration.

It has been held by their lordships of Supreme Court in the case of Sarwan Singh Vs. State of Punjab, that identification of the accused in the court for the first time should not be relied upon for the purpose of conviction without a definite corroboration.

In the instant case, as noticed above, P.W. 14 was knowing the appellants, because he is close relative of P.W. 12 but he has not disclosed the names of appellants as assailants of deceased in examination-in-chief. Under the said circumstance, we find that evidence of P.W. 14 without any corroboration can not become the sole basis for convicting appellants.

In view of the discussions made above, we find that impugned judgment of conviction and order of sentence suffers from various illegalities and irregularities. Thus, they cannot be sustained in this appeal.

In the facts and circumstances of the case, this appeal is allowed and the impugned judgment of conviction dated 07.08.2003 and order of sentence dated 11.08.2003 passed by learned Ist Additional Sessions Judge, Pakur in Sessions Case No. 03 of 2002 is set aside. The appellants are acquitted from the charges levelled against them. It appears that the appellant No. 1 namely Mursalim Sk. @ Chimmu Sk. is in custody. Thus, he is directed to be released forthwith, if not wanted in any other case. It further appears that appellant Nos. 2 to 8 are on bail, thus, they are discharged from the liabilities of their bail bonds.