Conviction based solely on an oral dying declaration requires corroborative evidence; doubts undermine its reliability.

JUDGMENT :

M. Zothankhuma, J.

1. Heard Mr. B. Chetri, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State.

2. This appeal has been filed against the judgment dated 08.02.2023 passed by the learned Additional Sessions Judge (FTC-I), Margherita, in Sessions Case No.24(M)/2017, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life, with a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for 6 (six) months under .

3. The appellant’s basic case is that the oral dying declaration of the deceased, which was heard only by PW-1 (informant), while the evidence shows that there were other prosecution witnesses present with PW-1 at the relevant time, could not be the basis of convicting the appellant under Section 302 IPC .

4. Mr. B. Chetri, learned counsel for the appellant submits that PW-1 did not make a mention in the FIR submitted by him that the deceased had made a dying declaration in the FIR or in his statement under Section 161 Cr.P.C.. He also submits that the Investigating Officer (I/O) of the case, i.e. PW-8, in his testimony, had also not made any mention of PW-1 having ever spoken of the deceased having given a dying declaration. He thus submit that when there is no basis for convicting the appellant, the conviction and sentence of the appellant under Section 302 IPC by the learned Trial Court is liable to be set aside.

5. Ms. B. Bhuyan, learned Additional Public Prosecutor, on the other hand submits that the evidence of PW-1 was enough to convict the appellant under Section 302 IPC , subject to this Court finding it truthful. She also submits that the weapon used for the offence, i.e, wooden stick was recovered from the residence of the appellant. Further, the appellant being on the run, the same showed the guilty mind of the appellant. She accordingly submits that the impugned judgment should not be interfered with.

6. We have heard the learned counsels for the parties.

7. The conviction of the appellant by the learned Trial Court as the person who had murdered the deceased, is on the ground that the deceased had, prior to his death, given an oral dying declaration to PW-1, where he had implicated the appellant as the person who had assaulted him. Further, the appellant was not available in his house when the police went in search of him after the incident. Thirdly, the police seized the bamboo, which was alleged to be the murder weapon. The learned Trial Court thus held that first circumstantial evidence thus proved that the appellant had killed the deceased.

8. The prosecution case in brief is that an FIR dated 17.09.2016 was submitted by PW-1, who is the uncle of the deceased. The FIR which was addressed to the Officer-in-charge, Digboi Police Station stated that on 16.09.2016 at about 10 O’clock in the night, one Sri Dipak Thapa came to the house of the deceased and woke him up and then both went to Dhekiajan village for some reason. A little later, the appellant who had been lying in ambush on the road, assaulted the deceased and injured him seriously. Thereafter, an ambulance was called and the deceased was admitted in I.O.C Medical at Digboi. The deceased however died while under treatment. The FIR was registered as Digboi P.S. Case No.154/2016 under Section 302 /34 IPC .

9. After investigation of the case, the I/O (PW-8) started the investigation nd and the 2 I/O, i.e. PW-9 submitted the charge-sheet, wherein a prima facie case under Section 302 /34 IPC was found