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IN THE HIGH COURT OF CALCUTTA
Joymalya Bagchi, Suvra Ghosh, JJ.
Mannan Sk And Others - Appellants
Versus
State Of West Bengal - Respondent
Criminal Appeal No. 646 of 2015
Decided On : 10-02-2020
Dying Declaration - Criminal Law - Indian Penal Code - Sections 148/149/304 Part I - 304 Part I read with Section 34 - 32(1) of the Evidence Act
Fact of the Case:
The deceased, Rupchand Sk., was attacked by the appellants and others, resulting in his death. The prosecution's case relied on oral and written dying declarations of the victim, as well as eyewitness testimony.
Finding of the Court:
The court found the dying declaration made by the deceased to be credible and truthful, and held the appellants guilty under Section 304 Part I read with Section 34 of the Indian Penal Code. The court acquitted other accused due to lack of specific attribution in the dying declaration.
Issues: The issues revolved around the reliability of the dying declaration, the admissibility of hearsay evidence, and the corroboration of the dying declaration with other evidence.
Ratio Decidendi: The court emphasized the admissibility of dying declarations under Section 32(1) of the Evidence Act, and the need for corroboration of the dying declaration with other evidence. The court also highlighted the principles governing the admissibility and reliability of dying declarations.
Final Decision: The court partly allowed the appeal, acquitted some accused, and convicted the appellants under Section 304 Part I read with Section 34 of the Indian Penal Code, sentencing them to rigorous imprisonment and a fine.
JUDGMENT
Joymalya Bagchi, J. - The appeal is directed against the judgment and order dated 29.08.2015 and 31.08.2015 passed by the learned Additional Sessions Judge, 4th Court, Berhampore, Murshidabad in Sessions Trial No. 8/September/2000 arising out of Sessions Sl. No. 150/1993 convicting the appellants for commission of offence punishable under Sections 148/149/304 Part I of the Indian Penal Code and sentencing them to suffer imprisonment for three years each for commission of offence punishable under section 148 of the Indian Penal Code and to suffer rigorous imprisonment for ten years each and to pay a fine of Rs. 5,000/- each, in default, to suffer six months more for commission of offence punishable under section 304 Part I of the Indian Penal Code read with section 149 of the Indian Penal Code with a further direction if the fine be realized, the same be paid to the immediate family members of the deceased, Rupchand Sk.
2. Prosecution case, as alleged, against the appellants is to the effect that on 13.12.1992 around 7.30 p.m. Jahirul Islam, P.W. 10, younger son of Rupchand Sk. (since deceased) was playing music in a tape recorder in his south facing room on the first floor of the building. Sishful Sk. (since deceased) and his sons Basar Sk., Mannan Sk., Hamid Sk. and Yunus Sk. came to the residence of Rupchand and raised objection. Rupchand was in the drawing room (baithak khana) in the ground floor of the home. He came out and the said persons threatened Jahirul with dire consequences if he played music on his tape in future. Mannan Sk. ordered to lift Jahirul and Basar Sk. dragged him from the drawing room threatening he would kill him. Rupchand intervened and asked Jahirul to go away. Thereupon the aforesaid persons left the spot and returned along with others armed with pistol, bomb, etc. Seeing them, Jahirul ran away. Yunush dragged Rupchand out of the room while Mannan and Basar hurled bombs at him. As a result, Rupchand suffered bleeding injury around his testicles. The miscreants attacked the house of Rupchand, ransacked it and ran away. Rupchand was taken to Jangipur Hospital in a rickshaw-van by his wife, Jahama Bibi (P.W. 9). Investigating Officer (P.W. 15), met them and recorded the statement of Rupchand and others. Thereafter, Rupchand was admitted to Jangipur Hospital and thereafter shifted to Berhampore Hospital where he breathed his last on 15.12.1992.
3. In the meantime, P.W. 15 went to the village whereupon Nurul Islam, P.W. 8, elder son of Rupchand handed over a written complaint to him. P.W. 15 forwarded the written complaint to the police station and the said complaint was treated as the first information report resulting in registration of Raghunathganj P.S. Case No. 221 of 1992 dated 14.12.1992 under sections 447/326/34 of the Indian Penal Code read with sections 3/4 of the Explosive Substance Act. Upon the death of Rupchand Sk. section 304 of the Indian Penal Code was added to the array of offences.
4. In conclusion of investigation, charge was filed against the appellants and other accused persons and the case was committed to the Court of Sessions and transferred to the Additional Sessions Judge, 4th Court, Berhampore, Murshidabad for trial and disposal.
5. Charges were framed against all the accused persons including the appellants under section 148/149/323/326/304 Part I of the Indian Penal Code. Separate charges were also framed under section 326/304 Part I of the Indian Penal Code read with section 34 of the Indian Penal Code against the appellants
Mannan Sk., Basar @ Basar Sk.
Appellants pleaded not guilty and claimed to tried.
In course of trial, Sishful died.
Prosecution examined 15 witnesses and exhibited a number of documents.
6. In the course of his deposition, P.W. 15 stated he had recorded the statement of Rupchand en route to the hospital. However, the recorded statement was not produced in Court. Accordingly, immediately after the conclusion of his examination, prayer was made on
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