Important point
The prosecution evidence proves that fatal blow was given by the deceased accused Nepal Deb. The involvement of appellants is doubtful and prosecution evidence cannot be relied upon for convicting them for the offences punishable under Sections 302/149 and 148 IPC.

Headnote:Indian Penal Code, 1860—Sections 302/149 and 148—Offences under—Conviction of appellants under—Confirmed by High Court—Conviction based on eye witnesses and dying declaration—Challenged in appeal—Apex Court finding several flaws—Brother of deceased making improvement—In FIR stated that appellants stabbed the deceased with knife—Later mentioned that only Nepal (since deceased) gave knife blow—Mother of deceased making changes in her version—Dying declaration recorded by PW 10 found doubtful—Recovery of “dagger” at the instance of Nepal Deb (since deceased) —Statement made by the accused Nepal Deb before Investigating Officer throwing doubt on prosecution version as deposed by eye witnesses prosecution witnesses found having not disclosed time and correct facts before Court—Result—Involvement of appellant found doubtful—Fatal blow was given only by deceased accused Nepal Deb—Result—Acquittal of appellants—Appeal allowed—(Evidence Act, 1872 —Sections 27 and 30). (Paras 4, 6, 7, 8, 10, 11 and 12)
Held : From the aforesaid evidence, it is apparent that the prosecution story with regard to involvement of appellants is doubtful and cannot be relied upon for convicting them for the offences punishable under Sections 302/149 and 148 of IPC. The role assigned to them by the witnesses is not believable and admittedly the fatal blow was given by the deceased Nepal Deb. In the result, this appeal is allowed. Appellants are acquitted for the offences for which they are charged and convicted. They be released forthwith, if not required in any other case. (Paras 12 and 13)

Judgment

Shah, J.—The High Court of Gauhati in Criminal Appeal No. 102 of 1994 confirmed the judgment and order dated 7.7.1994 passed by the Additional Sessions Judge, Silchar in Sessions Case No. 9 of 1992 convicting the appellants for the offence punishable under Sections 302/149 and 148 of IPC and sentencing them to undergo rigorous imprisonment for life and to a fine of Rs. 2000/- each for the offence under Section 302/149 IPC and further imposing sentence of one year rigorous imprisonment for the offence punishable under Section 148 IPC. That order is challenged by filing this appeal.

2. It is the prosecution version that deceased Dipak Deb alias Piklu, resident of Silchar went out for buying and chewing ‘Paan (Betel)’ at about 10 p.m. on 14.12.1990. On hearing his cry for help, brothers of the deceased went at the scene of the offence. It is their say that deceased Piklu was caught by the accused persons and at their instance, Nepal Deb (since deceased) gave a dagger blow on the left side of the chest of Piklu. The accused thereafter escaped. Deceased was taken to Civil Hospital at Silchar and subsequently shifted to Silchar Medical College Hospital. Dr. Debabrata Singh (PW 10) recorded the dying declaration of the deceased. On the next day, PW 5 Ranjan Deb, the elder brother of deceased lodged FIR before the Officer-in-charge Silchar Police Station. Piklu died on 17.12.1990.

3. It has been contended by the learned counsel for the appellant that so-called dying declaration is unreliable as it does not inspire any confidence. He further submitted that even if we take dying declaration as it is, it is inconsistent with what has been deposed by the eye-witnesses. The evidence of alleged eye-witnesses is not reliable as they refused to state correct facts on the day of incident and thereafter till 18.12.1990 despite the fact that the Investigating Officer wanted to record their statements on relevant dates.

4. It has come on record that PW 5 Ranjan Deb elder brother of the deceased gave information, for which entry at police station was made at about 10:10 p.m. on the date of incident i.e. 14.12.1990. As per the said information at about 10.00 p.m., Kajal Sen, Nepal Deb, Khukan Kar, Munna Kar, and Bappa Sen stabbed the deceased with a knife and the injured was under treatment at Silchar Medical College. In the Court, it is the say of the witness that at about 9.30 - 9.45 p.m. he along with his brother Sujit and Nripendra heard the scream of his brother and they ran to the direction of the scream. There, he saw Kajal Sen holding deceased by the hair, Bappa Sen holding him in arms and Kishan Kairi, Munna Kar, Bakul Kar, Khakan Kar and Nepal standing near by carrying weapons. Kajal Sen asked Nepal to hit the deceased. Immediately, Nepal assaulted Piklu with a weapon. On hearing their shouts, the accused fled away. Piklu fell down on the ground and was removed to the hospital. It is to be noted that there is clear improvement by this witness in what he stated in the FIR and in his deposition. In FIR he has not mentioned that Nepal gave knife blow but has stated that all the accused stabbed the deceased. Apart from this, other detail cross-examination is not required to be referred to.

5. Other evidence is that of mother of the deceased - PW 2 Smt. Pritilata Deb - who stated that on the night of occurrence, after the meal at about 9.30 p.m. or 10.30 p.m., Piklu asked her for a “Paan” and that he would go to the nearby “Paan shop” and would come back soon. After sometime, Piklu came back and told that Bappa (A4) and Kajal Sen (A1) had called him to discuss something. Thereafter, he went out with them. On going out, she found A-4 in her courtyard and A-1 near the Gate. The witness tried to dissuade Piklu and asked him “where are you going so late in the night”. A-1 then replied that they were going with Piklu and that after some discussion, he would return home. The witness also asked her sons, Nipu, Ranjan and Sujit as to

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Important pointThe prosecution evidence proves that fatal blow was given by the deceased accused Nepal Deb. The involvement of appellants is doubtful and prosecution evidence cannot be relied upon for convicting them for the offences punishable under Sections 302/149 and 148 IPC.

Important point
The prosecution evidence proves that fatal blow was given by the deceased accused Nepal Deb. The involvement of appellants is doubtful and prosecution evidence cannot be relied upon for convicting them for the offences punishable under Sections 302/149 and 148 IPC.