IMPORTANT POINT
Oral dying declaration.

Judgment :-

Dipak Misra, J.

The present appeal by special leave is directed against the judgment of conviction and order of sentence passed by the Gauhati High Court in Criminal Appeal Nos. 52(J) of 1999 and 53(J) of 1999 whereby the Division Bench of the High Court gave the stamp of approval to the conviction recorded by the learned Additional Sessions Judge, Silchar in Sessions Case No. 28/96 under Section 302/34 of the Indian Penal Code (for short “the IPC”) and order of sentence sentencing the accused-appellants to imprisonment for life and to pay a fine of Rs.500/-, in default, to suffer further rigorous imprisonment for one month. It may be mentioned here that the accused-appellants (hereinafter referred to as “the accused”) had preferred two separate appeals against the common judgment but a joint appeal has been preferred from jail.

2. The facts giving rise to this appeal are that on 17.7.1994, about 9.00 p.m., deceased, Sakat Ali, was found lying injured on the road side. Coming to know about the same, a large number of persons including the father-in-law of the deceased, his wife and others came to the spot and at that juncture, the injured Sakat Ali told them that he was assaulted by the accused persons along with one Asiquddin. He remained lying on the road side as neither the relatives nor his wife could arrange any conveyance for carrying him to the hospital and, eventually, he succumbed to the injuries around 11.00 p.m. While he was on the road, his father-in-law went to the police station wherein an “ezahar” was recorded. After the injured died, an FIR was lodged on 18.7.1994. After the criminal law was set in motion, the accused were arrested, the dead body of the deceased was sent for post mortem, statements of nine witnesses were recorded under Section 161 of the Code of Criminal Procedure and, eventually, after completing the investigation, the charge- sheet was placed before the competent Court under Section 302/34 of the IPC against the accused persons. The learned magistrate dropped the case against Asiquddin as he had died by that time and committed the matter to the Court of Session and ultimately the case was tried by the learned Additional Sessions Judge, Cachar at Silchar.

3. The accused abjured their guilt and desired to face the trial. During the trial, the prosecution, in order to establish its case, examined nine witnesses and brought on exhibit number of documents. After completion of the prosecution evidence, the accused persons were examined under Section 313 CrPC. They had not put forth any substantial plea except a bald denial and chose not to adduce any evidence.

4. The learned trial judge, considering the entire evidence, placing reliance on the oral dying declaration of the deceased and taking note of the weapon used and the nature of the injury caused, came to hold that the prosecution had been able to substantiate the charge beyond reasonable doubt and, accordingly, convicted them and imposed the sentence.

5. In appeal, the High Court took note of the fact that there was no direct evidence to implicate the accused and the minor omissions or contradictions and discrepancies which had been highlighted by the defence did not create any kind of dent in the prosecution version; that ample explanation had been offered by the prosecution for not getting the dying declaration recorded as the deceased was lying on the road side and could not be taken to a hospital; and that there was no reason to disbelieve the oral dying declaration, and the same being absolutely credible, the judgment and conviction rendered by the learned trial Judge did not warrant any interference.

6. We have heard Mr. Mithlesh Kumar Singh, learned counsel for the accused-appellants, and Mr. Avijit Roy, learned counsel appearing for the respondent-State.

7. Questioning the correctness of the conviction, it is urged by Mr. Singh, learned counsel for the appellants, that the learned trial Judge as well as the High Court has gravely