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GAUHATI HIGH COURT
S.N.Phukan, J.
Kajal Sarkar and Another -Appellant
Versus
State of Assam and Ors. -Respondent
Criminal Appeal No. 6 of 1993
Decided On : 27-03-1993
Dying Declaration - Murder - IPC 302/34, IPC 393, IPC 394 - The court discussed the dying declaration of the deceased and the evidence presented. It highlighted the importance of a clear and unambiguous dying declaration and the requirement for complete names and addresses to be given. The court emphasized the need for clear evidence of recognition and the weakness of recognition by voice alone.
Fact of the Case:
The deceased was found with injuries and later succumbed to them. The prosecution relied on the dying declaration of the deceased to convict the accused-appellants.
Finding of the Court:
The court found that the prosecution failed to prove the case against the accused-appellants beyond reasonable doubt based on the evidence presented, particularly the dying declaration.
Issues: The key issue was the reliability of the dying declaration and the evidence of recognition by the deceased.
Ratio Decidendi: The court emphasized the importance of a clear and unambiguous dying declaration, the requirement for complete names and addresses, and the need for clear evidence of recognition.
Final Decision: The appeal was allowed, and the accused-appellants were directed to be released forthwith.
This appeal is against the judgment and order dated 3.12.92 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 86 (T)/88. By the impugned judgment, the learned Sessions Judge found both the accused-appellants Naru Malakar and Kajal Sarkar guilty under section 302/34 IPC and convicted them accordingly and sentence them to rigorous imprisonment for life and fine of Rs.l000/-each. Both of them were also found guilty under section 393 TPC and sentenced of 3 years rigorous imprisonment and fine of Rs. 1000/- each were imposed. The learned Sessions Judge also found them guilty under section 394 IPC and accordingly convicted them and sentenced them to 10 years rigorous imprisonment and fine of Rs. 5000/-. The sentences were to run concurrently.
2. On 6.1.84 Hemraj Agarwalla (PW 4) lodged the FIR before the Officer-in-charge, Tinsukia Police Station informing that on that day at about 9 PM on hearing halla near the house of his brother deceased Muralidhar Agarwalla, he went there and found his brother with several injuries on his body with blood coming out. On being asked he was informed by the deceased that 4 persons stabbed him and also gave dao blows and he could recognised Kajal Sarkar and Naru Malakar. According to FIR (Ext.l) the occurrence took place in front of the house of Rahitram Agarwalla (PW 3) when his deceased brother went there on hearing halla. In the FIR it was mentioned that 'it learnt that the same group of persons went to Rahitram Agarwalla's house to commit robberty and they cut the telephone connection and also stabbed and gave blow on bis body.' By this FIR Ext.l Police was also informed that both the injured persons were in very serious condition. Police after investigation submitted charge-sheet. It may be stated that one accused person Arabinda was declarer! absconder. The learned trial Court framed 1 charge under 4 heads against both the accused-appellants Kajal and Naru under section 302/34 IPC, 394 IPC and section 393 read with section 398IPC. During trial prosecution examined 11 witnesses including 2 doctors and 2 police officers. Accused persons pleaded not guilty and no witness was examined.
3. We have heard Mr. JM Choudhury, learned counsel for the accused-appellants and Mrs.K.Deka, learned Public Prosecutor at length.
4. We may now extract relevant portion of the evidence of the witnesses for the prosecution. In this connection, it may be stated that the deceased was brought to the house in the night in injured condition. Thereafter he was taken to the house of one Dr.Kirti Dey and as no doctor was available he was shifted to Saint Luke's Hospital where he succumbed on the next day.
5. PW 1 was the doctor of the said hospital who attended the injured alongwith the Surgeon, In cross-examination he has stated that deceased Muralidhar was brought to the hospital in a state of complete unconsciousness. This witness has further stated that he could not remember whether deceased Muralidhar regained consciousness after operation. He has made a categorical statement that as the deceased was unconscious he did not speak to him.
6. PW 2 Ratan Kumar Agarwalla is an Advocate and he resides about 1KM away from the house of deceased Muralidhar. At about 8.30 PM on the date of the occurrence he was informed over phone that some miscreants had seriously injured deceased Muralidhar and Rohitram (PW 3) and he went to the house of the deceased on a scooter. There he came to know that both the injured viz deceased and Rahitram were taken to the hospital. He came to know this fact from the persons present in the house of the deceased. After staying there for 10 minutes he went to the hospital and he was with the deceased and found him in semi-conscious state and the deceased was not in a position to speak clearly. Deceased was taken to the operation room. This witness has further stated that he was with the deceased at a stretch for about 24 hours and next day in the morning at about 10 AM de
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