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High Court Of Calcutta
AJIT KUMAR SENGUPTA , M. N. RAY
JAMIRUDDIN MOLLA - Appellant
Versus
STATE - Respondent
C. A. 209 Of 1982
Decided On : 04/05/1990
CRIMINAL LAW - SECTION 304 PART II - SECTION 304/34 - SECTION 161 - SECTION 162 - SECTION 32 - DYING DECLARATION - ADMISSIBILITY - REQUIREMENTS - INTERPRETATION - COURT ANALYSIS - FACTUAL CIRCUMSTANCES - WITNESS CREDIBILITY - EVIDENCE RELIABILITY - CONVICTION OVERTURNED.
Fact of the Case:
The appellant was convicted under Section 304 Part II for causing the death of the deceased, Khalil. The prosecution alleged that the appellant and other accused persons assaulted Khalil with deadly weapons, resulting in a severe abdominal injury that led to his death. The appellant challenged the conviction, arguing that the evidence against him was insufficient and unreliable.
Finding of the Court:
The court found that the prosecution's case was weak and unconvincing. The informant was not examined, the witnesses were examined long after the occurrence, and the alleged dying declaration was questionable. The court also noted that the only witness who implicated the appellant had a motive to lie due to a previous assault case involving the appellant's brother.
Issues: 1. Whether the evidence presented by the prosecution was sufficient to sustain the conviction of the appellant under Section 304 Part II? 2. Whether the alleged dying declaration was admissible in evidence and, if so, whether it was reliable?
Ratio Decidendi: 1. The court held that the evidence against the appellant was insufficient to prove beyond a reasonable doubt that he had caused the death of the deceased. The witnesses' testimonies were inconsistent and unreliable, and the alleged dying declaration was not properly obtained and corroborated. 2. The court held that the alleged dying declaration was inadmissible in evidence because it was not recorded in accordance with the requirements of Section 162 of the Criminal Procedure Code and was not corroborated by other evidence.
Final Decision: The court allowed the appeal, set aside the conviction and sentence, and discharged the appellant from the bail bond.
( 1 ) THIS appeal is directed against the conviction and sentence of the appellant under S. 304, Part 11 for which he was sentenced to rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for six months.
( 2 ) SHORTLY stated the prosecution is that on 30th Asar 1388 B. S. corresponding to I 5/07/1981 in the evening at about 7/ 7-30 p. m. the accused persons were sitting at a tea-stall belonging to P. W. 1 Kishori Mohan Dey situated by the side of Arindapara Road, Khairamari. At that time a quarrel was going on between Tajer and Khairul. In course of such quarrel the deceased Khalil came to the tea-stall from the field. As soon as Khalil came to the tea-stall, Khairul asked his associates, namely, the other accused persons of this case, to assault Khalil, Khalil started fleeing away, but he was chased by the accused persons and caught hold of. He was brought to the tea-stall and tied up with a rope and then the accused persons started assaulting him with deadly weapons. In course of such assault accused, Jamaruddin assaulted Khalil with a sword on his abdomen and as a result thereof he sustained a severe incised injury on his abdomen and he fell down on the ground. He was removed to Berhampore Hospital and was admitted there for treatment. On 4-8-81 he succumbed to his injuries. In the meantime, Aklema Khatun, niece of the deceased, lodged an F. I. R. alleging the incident and on the basis of that F. I. R. a case under Ss. 147/148/149 and 326, I. P. C. was started against the accused persons. After the victim died in the hospital, S. 304,i. P. C. was added into this case. Investigation of the case was taken up by the Police forthwith and after investigation of the case the police submitted charge-sheet against all the accused persons under section amongst other Ss. 304/ 34, I. P. C. After the case was committed to this Court for trial a charge u/ss. 304/34,i. P. C. was framed against all the accused persons to which they pleaded not guilty and claimed to be tried.
( 3 ) THESE persons were charged under Ss. 304/34,i. P. C. but apart from the appellant before us all these persons were found not guilty and were acquitted.
( 4 ) AT the hearing the learned Counsel for the appellant has assailed the judgment under appeal. He has drawn our attention to the prosecution witnesses and
submitted that there is no evidence at all which can sustain the conviction in this case. He has pointed out that firstly the informant was not examined; secondly the witnesses have been examined long after the occurrence; thirdly the alleged dying declaration on which the prosecution relied upon is hit by the provision of S. 162 of the Criminal Procedure Code and lastly the only witness P. W. 3 could not be relied upon as he had enmity with the brother of the accused.
( 5 ) WE have considered the contentions.
( 6 ) AKLEMA Khatun is the niece of the victim, Khalil Sk. She was the informant. No explanation has been given why she was not examined in this case.
( 7 ) P. W. 1 is a post occurrence witness. In his cross-examination he said that besides the two persons named by him, no other person was present at the tea-stall at the time of the occurrence. He did not name the appellant.
( 8 ) THE other witness is P. W. 3. His evidence is that at that time he was taking tea at the tea-stall of Kishori Mohan Dey. At that time Khairul and Tajar who were in the stall were quarrelling. Then Khalil came to the tea stall from the side of the field. Jahapan, Bhola, Majarul, Ahachand, Jamir were asked by Kharul to assault Khalil and then Khalil started fleeing away. Ahchand, Jamir and Majarul then chased him and brought him to the tea-stall. They all started 'marpit'. In course of 'marpit' Jamir assaulted Karim with a sword on his abdomen. Khairul fell down in front of the tea-stall. Thereafter, he left the place. All the accused persons named were on the dock. The incident continu
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