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2014 Supreme(Cal) 700
High Court of Judicature at Calcutta
NISHITA MHATRE & SAMAPTI CHATTERJEE, JJ.
Sk. Anisur & Another
Versus
The State of West Bengal
C.R.A.No. 570 of 2007 with C.R.A.No. 688 of 2006 with C.R.A.N.No. 3806 of 2014 (Appellate Side)
Decided on : 02-12-2014
For the Appellants:Manik Bakshi, Bratati Dutta, Advocates.
For the Respondent:Pawan Kumar Gupta, Advocate.
In the absence of other evidence, a dying declaration recorded by an independent witness and witnessed by reliable persons can be relied upon to convict an accused.
Headnote:
Murder - Dying Declaration - Admissibility - Section 302 IPC - Section 302 read with Section 109 IPC - Appreciation of Evidence - Conviction - Anisur acquitted - Mohidul's conviction upheld.
Fact of the Case:
Mohidul and Anisur were convicted by the Trial Court for the murder of Sahidul. Mohidul was found guilty under Section 302 IPC, while Anisur was convicted under Section 302 read with Section 109 IPC. Both were sentenced to life imprisonment.
Finding of the Court:
The High Court acquitted Anisur, giving him the benefit of the doubt, as there was no evidence to incriminate him. However, the Court upheld Mohidul's conviction, considering the dying declaration of the victim, which implicated him, and the fact that he was found in the closed room with the injured victim, clutching the blood-stained knife.
Issues: 1. Whether the dying declaration of the victim was admissible and reliable. 2. Whether there was sufficient evidence to convict Anisur under Section 302 read with Section 109 IPC. 3. Whether the Trial Court's conviction of Mohidul under Section 302 IPC was justified.
Ratio Decidendi: 1. The dying declaration was admissible and reliable as it was recorded by an independent witness, the doctor, and witnessed by two members of the hospital staff. The doctor's failure to mention the victim's frame of mind when the statement was recorded did not render it unreliable, as there was no cross-examination on this point. 2. There was no evidence to incriminate Anisur. He was not present when the room was opened, and there was no evidence of abetment. The testimony of witnesses implicating Anisur was not supported by other evidence. 3. The Trial Court's conviction of Mohidul was justified based on the dying declaration implicating him and the fact that he was found in the closed room with the injured victim, clutching the blood-stained knife.
Final Decision: The High Court allowed Anisur's appeal and acquitted him, giving him the benefit of the doubt. Mohidul's appeal was dismissed, upholding his conviction under Section 302 IPC.
Nishita Mhatre, J.
1. The appeals are directed against the decision of the Additional District and Sessions Judge Fast Track Court, Jhargram in Sessions Trial No.53/March/98 by the impugned judgment dated 24th February, 2006 the Trial Court has convicted both the appellants -Mohidul has been found guilty of the offence punishable under Section 302 while Anisur has been convicted under Section 302 read with Section 109 of the Indian Penal Code. Both of them have been sentenced to life imprisonment. In addition Mohidul has been directed to pay a fine of Rs.5,000/- (Rupees Five Thousand only) and in default of payment of fine, he is required to undergo simple imprisonment for a period of two years. Besides the jail sentence Anisur has been fined Rs.15,000/-(Rupees Fifteen Thousand only) and in default of payment of the fine, he has been sentenced to undergo simple imprisonment for three years.
2. Ashok Shit PW 4 was informed by one Kumed Mahato at 10.30 p.m. on 6th June, 1997 that somebody had been murdered in his newly constructed house. He rushed to the house where he had permitted hawkers from Murshidabad to reside. He heard a cry from the room “Save me”. The police from Belpahari Police Station arrived after being informed by Kumed Mahato. The door was broken open and they entered the room. They found Sahidul Sk. writhing in pain on the floor with a bleeding injury in his abdomen. A knife was lying near Sahidul. They went into another room and found a new boy sitting on the beam with a big dagger in his hand. Sahidul was taken to the Belpahari Hospital and the police took the persons sitting on the beam in his custody. The doctor recorded a statement of Sahidul which was made in the presence of the staff of the Hospital and PW 4. The victim mentioned that Mahidul had stabbed him in the abdomen with the knife. Sahidul died in the hospital after informing the doctor his home address. Ashok Shit filed the complaint and the FIR was registered.
3. It appears from the record that the statement of Mohidul was recorded under Section 164 of the Cr.P.C. However, that statement was not exhibited, nor is a copy of the same on the record before the trial Court. On the basis of that statement Anisur was arrested. The statement was made on 9th June, 1997 and Anisur was produced before the Court on the same day.
4. The dying declaration of the victim has been recorded by the doctor, PW 9 at the Belpahari Hospital. The victim has mentioned therein that Mohidul had stabbed him in the abdomen an hour before he was brought to the hospital. The victim has also stated that he and Mohidul used to hawk aluminium articles at Belpahari. He mentioned that his boss stayed in Sagina Hotel in Kharagpur. The statement was recorded in the presence of two members of the hospital staff. They have signed the dying declaration along with PW 9.
5. An inquest was conducted in the hospital. This inquest report had been signed by PW 9 and PW 4, the complainant.
6. The post-mortem report indicated that the death was due to severe blood loss following the injury which was homicidal in nature.
7. PW 1 has written the complaint as dictated by PW 4. He has stated that he called the police to the place of occurrence, that is, the house of Ashok Shit. He has witnessed the seizure of certain articles from the room. However he had not seen the incident at all.
8. PW 2 is also a seizure witness.
9. PW 3 was present when the police broke open the door of Ashok Shit’s house where the incident occurred. He has mentioned that Mohidul and perhaps Sahidul the victim were tenants in Ashok Shit’s house. He had hawkers whom he had seen. He had stated that Mohidul hid on the beam just below the tiled roof of the room. According to this witness he was present when the injured victim was taken to the hospital. He claimed that the victim had mentioned the name of the assailant and that the doctor had probably recorded the same.
10. PW 4 Ashok Shit, the complainant has rei
