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IN THE HIGH COURT OF GAUHATI
Achintya Malla Bujor Barua, Nani Tagia, JJ.
Md. Dulaluddin – Appellant
Versus
State of Assam and Another – Respondents
Criminal Appeal No. 281 of 2018
Decided On : 31-05-2019
Constitution of India – Article 14 – Indian Penal Code – Section 300 302 – Evidence Act, 1872 – Section 26 27 – Appeal Against Conviction of Murder – Based upon the aforesaid materials on record, the prosecution seeks to make out a case that firstly there is a dying declaration by the deceased before the PW-2 and PW-3 and secondly there is also an extra-judicial confession by the accused before the PW-4 and PW-5 which establishes the guilt of the accused beyond all reasonable doubt that it is the accused alone who had inflicted the injuries on the deceased which had caused his death – As regards the contention of dying declaration, counsel for the appellant has advanced his argument that considering the nature of the injuries that were sustained by the deceased, he could not have been in a proper medical state to make the dying declaration as deposed by the PW-2 and PW-3 – As regards the contention that there is also an extra-judicial confession by the accused as indicated in the deposition of PW-4 and PW-5, counsel for the appellant has raised the question that such extra- judicial confession was made by the accused person while he was in police custody and, therefore, the extra-judicial confession would be hit by Section 26 of the Evidence Act cannot be made a basis for a conviction against him – Held, From a reading of the evidence on record, more particularly, the evidences of DW-2 and DW-3, who are apparently independent witnesses, as well as in view of the absence of any further evidence being led by the prosecution establishing that the deceased was in a medically fit condition to make a statement, Court is of the view that the prosecution had failed to prove the requirement of a dying declaration that the maker of the declaration was in a medically fit condition to make such declaration – Accordingly, the case of the prosecution by relying upon the dying declaration made before the PW-2 and PW-3 stands rejected – A reading of the evidence of PW-4 would go to show that the extra judicial confession made by the accused was made inside the police station in the presence of the police – A question would therefore arise as to whether the said extra judicial confession was made by the accused while he was in the police custody – Court is of the view that in the present case the accused appellant up to the stage of completing his statement that he had given two or three blows on the neck of the person, was not in the police custody, although he may have been there in the presence of the police personnel – Such extra judicial confession as deposed by PW-4 in his deposition would not be unacceptable under the provisions of Section 26 of Indian Evidence Act – As regards corroboration the medical evidence reveals that there are three cut injuries around the neck portion of the deceased, which again is corroborated by the evidence of the other prosecution witnesses and in the extra-judicial confession also the accused stated that he came after giving two or three blows on the neck of the deceased – Considering the nature of the injuries comprising of deep cut wounds with a sharp cutting weapon on the backside of the neck and in the absence of any other circumstances in favour of the accused appellant, Court is of the view that no mitigating circumstance had been made out to bring the act of the accused appellant within any of the exceptions to Section 300 of the Indian Penal Code – Accordingly the conviction of the accused appellant in the judgment of the learned Sessions Judge, convicting the accused appellant under Section 302 IPC and sentencing him is upheld – The appeal stands dismissed – Appeal Dismissed
JUDGMENT :
Achintya Malla Bujor Barua, J.
1. Heard Mr. I Choudhury and Mr. S.M. Abdullah P. learned counsel appearing for the appellant. Also heard Mr. H. Sarma, learned Additional Public Prosecutor, Assam and Mr. P. Sharma, learned counsel for the informant/respondent No. 2.
2. An ejahar dated 25.09.1999 was lodged by Deenul Islam before the Officer-in-Charge of Rupahihat Police Station stating that on 25.09.1999 at about 7.45 PM while his brother Imam Hussain was coming back after keeping a watch on the fishery situated at Kaboimari field, the accused Dulal Uddin had hacked him on the neck with a khukri on the PWD road in front of his house and caused his death. Accordingly, the accused appellant was charged of an offence under Section 302 of the IPC for having committed the murder by intentionally causing the death of Imam Hussain.
3. The informant Deenul Islam while deposing as PW-1 had stated that the body of his younger brother Imam Hussain, who was a student having passed the Higher Secondary examination, was found lying on the PWD road infront of the house of the accused Dulaluddin. When he reached the spot he found the dead body of Imam Hussain and saw cut injuries on his head and back side of neck. He stated that his elder sister Afia Khatoon, Hajrat Ali and Abdul Bari and another 4 or 5 persons whom he could not recognize were present at the place of occurence. He stated that Afia had told him that the deceased before his death had told her that the accused Dulaluddin had killed him.
4. PW-2, Afia Khatun, who was present at the place of occurence in her deposition stated that in the evening at around 7-8 PM, she heard a hue and cry where someone was saying "Mairase Mairase" which means someone was assaulted. When she rushed to the spot she saw that her brother Imam Hussain was lying on the PWD road infront of the house of Dulaluddin and was screaming. She also stated that his entire body was smeared with blood and that she saw two cut injuries on the head and a cut injury on his neck. She also stated that when she held him and asked brother what happened to you? he replied that Dulaluddin had hacked him. She also stated that Mostafa Ahmed, Hazrat Ali and Abdul Bari were waiting nearby. She further stated that her brother breathed his last after about 15 minutes.
In cross, PW-2 stated that they had not taken Imam Hussain inside the house and the police took away the dead body from the place where it was lying.
5. PW-3, Hazrat Ali, whose presence was acknowledged by PW-2, in his deposition stated that having heard a hue and cry coming from the southern direction of his house, he went running to the place and he found that Imam Hussain was lying on the road near the house of Dulaluddin and in the moonlit night he saw a cut injury on the head and two cut injuries on the neck. He deposed that on being asked by Afia as to who had assaulted him, Imam Hussain said about 6/7 times that Dulaluddin had hacked him. He further stated that Imam died after 15 to 20 minutes later.
In cross, PW-3 stated that although he had held Imam Hussain but had not tried to lift and carry him to the house. He also stated that Imam Hussain could not speak any further after saying about 6/7 times that Dulaluddin had hacked him.
To a suggestion, he stated that it is not a fact that it is false that on being asked by Afia, Imam Hussain had told that Dulaluddin had assaulted him.
6. PW-4, Abdul Awal in his deposition stated that on the given day about 1-1½ years back after having closed his shop which was situated near the police station, he went to the police station. While he was sitting inside the police station a person entered with a three battery torch and a khukuri and identified himself as Dulaluddin and said that he came there after giving 2/3 cut blows on the neck of a person named Imam Hussain and he could not say whether the person was alive or not. It was stated that thereafter, the person handed over the khukuri and the torch to the police offic
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