Page No.# 1/24
GAHC010002752019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/6/2019
Sri Gautam Mondal,
Son of Lt. Narayan Mandal,
Resident of Village No.1 Uttar Dimakuchi,
Police Station : Dimakuchi,
District: Udalguri, (B.T.A.D.), Assam.
......Appellant.
-Versus-
1. The State of Assam.
2. Smt. Kanan Mondal,
Wife of Late Anil Mondal
......Respondents.
Advocates for the Appellant : Md. A. Ali,
Mr. A. Chaudhury,
Mr. P.K. Das,
Mr. N.J. Das,
Mr. B. Baruah
..........Advocates
For the Respondent No. 1 : Ms. B. Bhuyan (Sr. Adv./Addl. P.P)
Mr. A. Talukdar, Advocate
Page No.# 2/24
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 06.09.2022, 08.09.2022 & 20.09.2022
Date of Judgment : 02.12.2022
JUDGMENT AND ORDER (CAV)
[Susmita Phukan Khaund, J.]
Heard Mr. B. Baruah, learned counsel appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam assisted by Mr. A. Talukdar, learned counsel appearing for the State/respondent No.1.
2. This is an appeal from jail.
3. In this appeal, the appellant has challenged the impugned judgment dated 11.10.2018 passed by the learned Sessions Judge, Udalguri in Sessions Case No.97(U)/2015 arising out of GR Case No.817/2014 by which the appellant has been convicted under Section 302 IPC/ Sections 25(1-A) and 27(2) of the Arms Act but acquitted of the charge under Section 201 of IPC. The appellant was awarded various sentences to undergo ranging from Life Imprisonment for offence under Section 302 of IPC and to pay a fine of Rs.10,000/- only in default simple imprisonment for 6(six) months, Simple Imprisonment for 5 (five) years for the offence under Section 25(1-A) of Arms Act and to pay fine of Rs.5,000/- only in default Simple Imprisonment for 3 (three) months and further Simple Imprisonment for 7 (seven) Page No.# 3/24 years for the offence under Section 27(2) of Arms Act and to pay fine of Rs.5,000/- only, in default Simple Imprisonment for 3 (three) months.
4. The case of the appellant is primarily based on the ground that there was no eye witness of the incident and conviction of the appellant was purely based on so-called dying declaration which was recorded after a long period of 21(twenty one) days which also has not been corroborated by other evidences and as such, it was impermissible to rely on such uncorroborated statement, recorded after such delay to convict the appellant under Section 302 of IPC.
5. In order to appreciate the contentions raised, it may be apposite to briefly refer to the facts which have emerged in course of the trial. The criminal proceeding was initiated against the appellant after an F.I.R. was lodged on 29.07.2014 by the mother-in-law of the deceased to the effect that the deceased was shot by the appellant with a pistol causing bullet injury on the stomach of the deceased and she was evacuated to the hospital for treatment. Accordingly, on the basis of the said F.I.R., a Police case being Dimakuchi P.S. Case No.60/2014 was registered on 29.07.2014 under Sections 326/207 IPC and Sections 25(1-A) and 27 of the Arms Act. After the injured underwent treatment, she later succumbed to her injury and died on 16.01.2015. Thereupon, the appellant was subsequently charged under Section 302 of IPC.
6. From the above, it appears that the deceased succumbed during the course of investigation after the initial F.I.R. was lodged on 29.07.2014. On completion of the investigation, the appellant was charged on the following offences, Firstly, that on or about 27.07.2014 at No.1 Uttar Dimakuchi under Dimakuchi Page No.# 4/24 Police Station, the appellant had committed murder by causing the death of Joysna Mandal and thereby committed an offence punishable under Section 302 IPC;
Secondly, that on the same day, time and place, after committing the murder of Jyosna Mandal he concealed her dead body with the intention of screening himself from legal punishment and thereby committed an offence punishable under Section 201 IPC;
Thirdly, on the same day, time and place, the appellant possessed fire arms and acted in contravention of Section 7 of the Arms Act and thereby committed an offence punishable under Section 25(1-A) of Arms Act;
Fourthly, on the same day, time and place, the appellant used the arms and ammunitions and thereby committed an offence punishable under Section 27 of Arms Act.
7. Before the Trial Court, the prosecution examined as many as 14 (fourteen) witnesses. The appellant took the plea of denial and claimed that he was falsely implicated. Thus, no specific plea was taken by the appellant except for denial.
8. The Trial Court, however, after considering the evidences on record, convicted the appellant under Section 302 IPC and Sections 25(1-A) & 27 of Arms Act.
9. PW-1, Deben Ch. Gohain was the official witness who was working as the Armourer cum Hav., at 12th A.P. Bn. Jamugurihat, Sonitpur who had examined the bullet which was exhibited as Ext.A. He stated that the bullet piece is a factory made firearm and it was a fired bullet piece at the time of examination. It may be mentioned that the said Ext.A was Page No.# 5/24 recovered from the body of the deceased when she was in an injured condition.
10. PW-2, Sri Jaganath Mandal is the victim's husband. Though he was not an eye witness to the said incident, he came to his house after hearing a hue and cry. When he reached his house, he saw gunshot wound on the chest of his wife which was covered with blood. PW-2 stated that his wife told him that Gautam (the appellant) had shot her. Thereafter, the people assembled there and he called the 108 ambulance and took his wife to Guwahati.
11. PW-3, Smt. Kanan Mandal (informant) is the grand-mother of the appellant and mother-in-law of the deceased who also was not an eye witness but came to the house after hearing the hue and cry. She saw gunshot wound on the body of her daughter-in-law Joysna Mandal. PW-3 stated that her daughter-in-law told her that Gautam had shot her.
In the cross-examination, she denied the suggestion by the defence that she did not inform the police that her daughter-in-law had told her that Gautam had shot her. In the cross-examination, she also denied that there was no quarrel between her daughter-in-law and Gautam.
12. PW4, Smt. Rupali Pradhan also did not witness the incident. But she stated that when she came to the house of the informant, she saw the victim lying on the ground in injured condition and people in the PW3's house stated that Gautam Mandal had shot the daughter- in-law of the informant.
In cross-examination, PW4 admitted that she did not inform the police that Jaganath (PW2) told her that Gautam Mandal had shot the deceased.
13. PW-5, Smt. Bharati Baishya was a tenant of the informant.
Page No.# 6/24 PW-5 stated that she was present in her room which is situated near the room where the incident occurred. In the evening hours, she heard the sound of firing, from the room in which the incident occurred and on hearing the sound, she looked into the house of her landlord and saw that Joysna Mandal was lying smeared with blood and with injury on her person. Then the injured person told her that Gautam had shot her. PW-5 also stated that when the appellant's mother came, she said that Gautam had gone to call the Doctor.
At the instance of the prosecution, PW-5 was declared a hostile witness and thereafter, she was allowed to be cross-examined by the prosecution.
PW5 was also cross-examined by the defence. During the cross-examination by the defence, she stated that when she went to the place of occurrence, Joysna Mandal was able to speak. Many people asked her as to who had shot her and several people asked several questions to the appellant. PW-5 stated that she knew the appellant even before she was a tenant in their residence. PW-5 also stated that Joysna Mandal had herself told other people that Gautam had shot her. PW-5 also added that she did not hear it herself. She also stated that she had forgotten whether she told the police or not that when someone among the public asked the injured person as to who had shot her, the injured person told that Gautam had shot her.
14. PW-6, Sri Gour Choudhury was not an eye witness but was a witness to the inquest.
15. The testimony of PW-7, Smt. Namita Mandal is important as far as the prosecution is concerned as she was the younger sister of the appellant. She was about 15 years old when she testified before the Court and the Court after satisfying itself about her mental condition to depose before the Court, proceeded to examine her.
Page No.# 7/24 In her testimony, PW-7 stated that the deceased was her aunt and the accused- appellant was her elder brother. Though she did not witness the incident when it occurred, she stated that while they were talking with her tenant Bharati Baishya, PW-5, she heard a sound of fire in her house and on hearing the sound, they came out and saw her elder brother Gautam running away. Then she saw her aunt writhing in injured condition. Her aunt was covered with blood. Later on Bharati Baishya, PW-5 and other people lifted her up. PW- 7 stated that initially she thought the sound was from bursting of crackers. She also stated that she saw her elder brother Gautam fleeing with something in his hand.
In cross-examination, PW-7 stated that when she came out after hearing the sound of fire and reached the place of occurrence, she saw many people. She also stated that she did not know if the people assembled there saw her elder brother Gautam running away. She stated that she saw her elder brother Gautam running to the south, holding something in hand, though she could not properly see his face. She also stated that at that time, the people of the village were coming towards the place of occurrence and no one had accompanied the person who ran away. She also stated that though she did not see anyone accompanying her elder brother Gautam, she denied the suggestion that the person who ran way is not her elder brother but someone else from the village.
16. PW-8 is one Sri Ananda Ray who was a witness to the inquest report.
17. PW-9, Dr. P.K. Brahma who conducted the post-mortem examination on the dead body of Joysna Mandal found the following injuries, "EXTERNAL APPEARANCE:-
An emaciated female dead body.
Page No.# 8/24 Bed sores as follows:-
(1) Over whole sacrum with exposed periosteum with sign of infection. (2) Bed sore over both buttocks approximate size 10 x 6 x 1 cm each. (3) Healed incisional scar upper lumber region approximate size 6 cm in length. (4) Scar mark over right lower chest, approximate size 2 cm in diameter.
More detailed description of injury disease:-
History of Bullet injury with operative statement in GMCH present, few months back." PW-9, Dr. P.K. Brahma, gave the opinion that the cause of death was due to post- operative debility with septicemia. When cross-examined by the defence, he stated that there was a history of operation but he had not performed the operation.
18. PW-10, Smt. Bina Das was declared hostile and on being cross-examined by the prosecution, she denied having told the police that Gautam Mandal had run away from southern side of the village.
19. PW-11, Sri Khagendra Hazarika who was the 2 nd Officer of Dimakuchi Police Station stated that on getting information over phone at about 6:30 p.m. on 27.07.2014 that a woman of Bengali community had been shot by some unknown miscreant behind the community hall near the Dimakuchi Don Bosco School, he entered Dimakuchi P.S. GDE No. 505 dated 27.07.14 at 6:30 p.m. and proceeded towards the place of occurrence. On reaching the place of occurrence, he found that the injured was already taken to the hospital and thereafter, he recorded the statement of the witnesses and prepared the sketch map of the place of occurrence. PW-11 also stated that while making statement before him, witness Bina Das, PW-10, saw Gautam Mandal running off to the southern side.
PW-11 also stated that during the investigation, the deceased Jyosna Mandal died Page No.# 9/24 while under treatment. Thereafter he got the post-mortem examination of the dead body done and accordingly, added Section 302 IPC and he was entrusted with the investigation of the case. During his investigation, he sent the seized bullet for examination at 12 th APBN Armoury and collected the Arms Report. He submitted the charge-sheet against the accused under Section 302/201 IPC read with Section 25 1(A)/27 Arms Act.
In the cross-examination, he admitted that the witnesses, Bharati Baishya, PW-5 and Bina Das, PW-10 did not state in their statements that they had seen the accused firing. However, they stated that they had seen the accused running away, soon after the incident.
In the cross-examination, PW-11 stated that nothing was seized except the bullet which was extracted by operation and the accused was arrested after about 11 (eleven) months of the incident.
The said PW-11 was re-examined. During re-examination, he mentioned about seeking prosecution sanction in connection with Dimakuchi P.S. Case No.68/14, under Sections 326/307 IPC read with Section 25 (1-A)/27 Arms Act and Additional Section 302 IPC.
He also stated that the previous Investigating Offier, Sri Durgakinkar Sarmah, during investigation seized one bullet which was recovered through the operation from the body of Jyosna Mandal at GMCH.
20. PW-12, Sri Tridip Thakuria was another Police Officer who was part of the investigation. He stated that on being informed that the absconding accused person in connection with Dimakuchi P.S. Case No.68/14 i.e. Gautam Mandal had returned to his house, he made a G.D. Entry No.07/15 dated 01.06.2015 and thereafter, arrested him as, at that time Investigating Page No.# 10/24 Officer, Khagen Hazarika was on leave.
21. PW-13, Smt. Rupa Thusun was the Sister-in-Charge, Neurosurgery O.T., GMCH in whose presence the bullet was recovered from the body of the injured Jyosna Mandal after being operated upon. She was the witness to the said seized bullet recovered from the body of Jyosna Mandal.
22. PW-14, Sri Durga Kingkor Sarma, was also the Police Officer who was involved in the investigation, who examined the victim Jyosna Mandal and her husband Jaganath Mandal on 29.07.2014 and recorded their statements under Section 161 Cr.P.C. He was the one who seized the bullet which was recovered on 08.09.2014 through operation at GMCH on being produced by Rupa Thunsun, Head Nurse, PW-13.
23. The main thrust of the argument advanced by the learned counsel for the appellant in challenging the judgment of the Trial Court is that the statement of the deceased recorded under Section 161 Cr.P.C. cannot be considered to be a dying declaration. It is submitted that the death of the deceased, as opined by the Doctor (PW-9) was that the deceased suffered post-operative debility with septicemia as a consequence of the operation and the bullet injury is not the cause of death. Moreover, it has been also submitted that the dying declaration was recorded by the Investigating Officer in spite of availability of sufficient time to get the statement of the victim recorded by a Magistrate. It has been submitted that a close scrutiny of the statement of the victim will depict that she was not in a fit state of mind, and it was not recorded while recording her statement that the victim was in a fit state of mind. The learned counsel for the appellant relied on the decision of the Hon'ble Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC 701 wherein it has been Page No.# 11/24 observed that:-
"4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the Bench to make the reference to the Constitution Bench. In Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart from the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji & Another vs. State of Gujarat 1999(9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander vs. State of Punjab 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise."
The Hon'ble Apex Court in Laxman's case (supra) upheld the law laid down in Koli Chunilal Savji & Anr. Vs State of Gujarat.
24. The learned counsel for the appellant has also referred to the decision of the Hon'ble Supreme Court in Smt. Laxmi v. Om Prakash and Others, 2001 AIR SCW 2481 wherein it been held that:-
Page No.# 12/24 "A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by Investigating Officer has been discouraged and this Court has urged the Investigating Officer availing the services of Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the Investigating Officer or the police officer later on relied on as dying declaration. In Munnu Raja v. State of Madhya Pradesh, AIR 1976 SC2199:(1976 Crl.
Li 1718) this Court observed -
"Investigating Officer are naturally interested in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of an Investigation ought not to be encouraged." The dying declaration recorded by the Investigating Officer in the presence of the doctor and some of the friends and relations of the deceased was excluded from consideration as failure to requisition the services of a Magistrate for recording the dying declaration was not explained. In Dalip Singh V. State of Punjab, AIR 1979 SC 1173: (1979 Crl LJ
700) this Court has permitted dying declaration recorded by Investigating Officer being admitted in evidence and considered on proof that better and more reliable methods of recording dying declaration of injured person were not feasible for want of time or facility available. It was held that a dying declaration in a murder case, though could not be rejected on the ground that it was recorded by a police officer as the deceased was in a critical condition and no other person could be available in the village to record the dying declaration yet the dying declaration was left out of consideration as it contained a statement which was a bit doubtful."
The appeal against acquittal preferred by Smt. Laxmi was thereafter dismissed by the Hon'ble Supreme Court.
25. On the other hand, the learned Addl. P.P. has submitted that the dying declaration marked as Exhibit-9 clearly depicts that the victim was in a fit state of mind because she also mentioned that she could feel the numbness of her feet and she could state that her operation which was to be performed as on that day could not be performed. The dying Page No.# 13/24 declaration as relied upon by the prosecution is reproduced herein below verbatim:
"My name is Joysna Mandal. Gautam is my nephew. He often comes to our house. On 27.07.2014, he came to our house. In the evening he came to our room and asked, "Kaki (Aunt) will you see the gun?" Simultaneously, he showed a gun. At that time, I took my clothes and was about to go out of the house to have a bath. When I reached the door, I got seriously hurt on the abdomen and I fell down. I don't know what happened thereafter. I sustained severe injury as a result of being shot by Gautam. I don't know why Gautam shot at me. Today, an operation was to be performed for removal of the bullet from my body. But, today the operation wasn't performed. My feet are still numb."
26. At this juncture it is pertinent to mention that cross-examination of the IO (PW-14) depicts that the deceased was "ill with injuries."
The FIR proved as Exhibit-12 by PW-11 depicts that the incident occurred on 27.07.2014 at 6 PM. The evidence of PW-2 as well as the evidence of other witnesses also depicts that the incident occurred at that time. The Medical Officer, PW-9 who performed the post-mortem deposed that the post-mortem was conducted on 16.01.2015. The Investigating Officer, Shri Durga Kingkor Sarmah, PW-14 testified that on 29.07.2014 at about 6:30 PM, the FIR was lodged by Smt. Kanan Mandal (mother-in-law of the deceased) and he registered the corresponding police case under Section 326/307 IPC read with Section 25 (1-A)/27 of the Arms Act and he took charge of the investigation. On 29.07.2014, he recorded the statement of the victim Jyotshna Mandal and her husband Jaganath Mandal under Section 161 Cr.PC, but on a later date PW-14 was re-examined and he testified that he recorded the statement of victim Jyotshna Mandal on 16.08.2014 under Section 161 Cr.P.C. He proved the statement of the deceased as Exhibit-9 and he proved his signature as Exhibit-9(1). In his cross-examination he has testified that after an operation conducted on 08.09.2014, a bullet Page No.# 14/24 was removed from the victim's body. He has admitted that the victim was ill with injuries at that time.
The Medical Officer who conducted the operation and recovered the bullet was not examined as a witness but a nurse who was present during the operation was examined as PW-13. Her name is Smt. Rupa Thunsun and her evidence depicts that she was present during the operation. It is not disputed that a bullet was recovered from the victim's body. Now the key question is whether this dying declaration which was recorded at a belated stage can be relied upon to uphold the conviction of the Trial Court. In this case the evidence of PW-14 depicts that the victim's statement under Section 161 Cr.P.C. was recorded at a later stage. She sustained bullet injury on 27.07.2014 and her statement was recorded after twenty days on 16.08.2014. After her statement was recorded, her operation was conducted on 08.09.2014 i.e. after 49 days after the alleged incident.
27. With regard to delay in recording statement of witnesses the learned counsel for the appellant relied on the decision of the Hon'ble Supreme Court in a common judgment in Harbeer Singh v. Sheeshpal & Others and State of Rajasthan v. Sheeshpal & Others, reported in (2016) 16 SCC 418 wherein it has been held that:-
"16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were recorded after two days of incident, i.e., on 23.12.1993. The evidence of PW6 was recorded on 26.12.1993 while the evidence of PW11 was recorded after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such Page No.# 15/24 testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W,B., (2002)7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in recording of statements of the prosecution witnesses under Section 161 Cr.P.C, although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
28. In the case at hand, the evidence depicts that the statement of the deceased was recorded under Section 161 Cr.P.C. Her statement was recorded after twenty days of the incident. The deceased was awaiting operation to be performed on her to remove the bullet from her body. Her statement was recorded under Section 161 Cr.P.C. by the Investigating Officer without an explanation regarding the delay in recording the statement of the deceased. Her statement marked as Exhibit-9 depicts that her feet were numb but prenomination of impeding death could not be deciphered from her statement. Her statement was recorded during the course of investigation and the Investigating Officer did not follow the procedure of recording a dying declaration. Unfortunately the deceased passed away on 15.01.2015, i.e. after five and half months of the incident. Then the statement of the deceased under Section 161 Cr.P.C. morphed into Section 32 of the Indian Evidence Act, 1872 (the Evidence Act, for short).
29. In Harbeer Singh's case (supra), at least the I/O had explained the reasons of delay Page No.# 16/24 in recording the statements of the witnesses unlike the instant case. It is true that in the instant case the statement of the deceased was recorded under Section 161 Cr.P.C. and at that time, death was not looming large. The Investigating Officer recorded the statement of the deceased under Section 161 Cr.P.C. in a routine manner, as a part of the investigation. The niceties and technicalities of recording a dying declaration was not observed by the Investigating Officer. A certificate by any doctor was not obtained by the Investigating Officer to affirm that the deceased was in a fit state of mind to give her statement. No explanation was also offered by the Investigating Officer regarding the reasons of delay in recording the statement of the deceased under Section 161 Cr.P.C. after a lapse of 21 days. The cross- examination of the Investigating Officer reflects that the deceased was "ill with injuries" when her statement was recorded. The evidence of the Investigating Officer does not transpire why the statement of the deceased was recorded after such a prolonged period. The deceased was available for examination but her statement under Section 161 Cr.P.C., was recorded after 21 days.
It will be perilous to rely on the statement recorded after 21 days of the incident to hold the appellant/accused guilty. Moreover it is amply clear that the deceased was ill with injuries when her statement was recorded. The statement of the deceased was recorded by the Investigating Officer (Police).
30. In view of the foregoing discussions, it is held that the statement of the deceased under Section 161 Cr.P.C. which culminated into a dying declaration under Section 32 of the Evidence Act cannot be accepted as legally admissible evidence in this case.
Jaganath Mandal (PW-2's) evidence depicts that his wife told him that Gautam had shot Page No.# 17/24 her. This statement of PW-2 has remained uncontroverted and uncontradicted as per Section 145 of the Evidence Act qua Section 162 of the Cr.P.C. PW-3's evidence that the deceased informed her that Gautam had shot her has not been contradicted by the cross-examination of the Investigating Officer (PW-14). Can this oral dying declaration by the deceased to the PW-2 and PW-3 be relied upon to convict the appellant/accused? The dying declaration recorded by the Investigating Officer has not been accepted as evidence. The evidence of PW-4 and PW-5 regarding the oral dying declaration has been contradicted through their cross-examination. If we consider the sequel of events, the evidence of PW-7 does not reflect about any dying declaration that had been made to her. Her evidence clearly depicts that immediately after the incident, she saw her elder brother (appellant) running away with something in his hand and she found her aunt writhing in an injured condition. Her aunt i.e. the deceased was conscious and the deceased could have easily informed her about the incident but her evidence does not even give a hint about any oral dying declaration made by the deceased regarding the involvement of the appellant. PW-8 is closely related to the deceased as he was her cousin. He however did not implicate that the appellant is complicit. In view of the following discussions, it is hereby held that the oral dying declaration and the dying declaration recorded by the Investigating Officer cannot be taken as corroborating dying declarations. In this case we cannot look for corroboration of the dying declaration marked as Ext-9, because the dying declaration is not accepted as evidence.
The oral dying declaration was the statement of the deceased before PW-2 and PW-3. This oral dying declaration was made before her mother-in-law and husband.
At the time of the incident, PW-7 was in a neighbour's house. The appellant is her elder Page No.# 18/24 brother. Although PW-7 found her aunt lying in an injured condition with a bullet injury and writhing with pain, she has not implicated that her elder brother fired the bullet. Immediately after the incident PW-7 met her aunt who was lying in an injured condition but she has not mentioned that her aunt stated that the appellant fired the bullet into her abdomen. This extends the benefit of doubt to the appellant. The appellant is a family member and his presence in the house is not unusual.
31. If we consider the events in a seriatim, we have the sound of a gunshot, and the neighbours and the family members, who were in the house or around the house rushing to the spot. PW-7 is a family member who was in her neighbour's house and then she came to the room when the deceased was found in an injured condition. PW-2 (husband of the deceased) went out to bring cows and when he heard the gunshot he immediately rushed home and then he saw gunshot wound on the chest of the deceased (below the right arm of his wife Jyosna Mandal). PW-3 (informant) went out to sell milk and when she returned she saw the gunshot wound on her daughter-in-law's body and her daughter-in-law informed her that the appellant shot her. PW-2 was also informed by his wife that the appellant shot her. It is most likely that PW-7 was the first person who had entered into the room after the gunshot. She was in a neighbour's house when she heard the gunshot. Her neighbour Bharati Baishya has testified as PW-5 that the place of occurrence is near her house and she heard a gunshot in the evening. As soon as she heard the gun shot, she looked towards her Landlord's house i.e. the place of occurrence and saw Jyosna Mandal smeared with blood. PW-5's evidence referring to the oral dying declaration by the deceased has been rebutted through her cross-examination and the cross-examination of the Investigating Officer PW-14 as per Section 145 of the Evidence Act. The cross-examination of PW-7 depicts that she came Page No.# 19/24 out of PW-5's house around 5:30 PM after she heard the gunshot. About 10 to 12 people had already assembled in her house but except PW-2 and PW-3, not a single person has referred to an oral dying declaration. An oral dying declaration made to PW-7 would have been evidence to bank upon.
32. While deciding this case, we have relied on the decision of the Hon'ble Supreme Court in the case of Uttam v. State of Maharashtra, reported in (2022) 8 SCC 576 wherein it has been observed that:
"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the Court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the Court would be expected to carefully scrutinize the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the Court in exercise of its discretion."
33. Reverting back to this case and in view of the foregoing discussions, it is held that the evidence is not clear if PW-2 and PW-3 reached the spot immediately after the gun shot or if PW-7 was the first person to reach the spot. It is clear that P-2 is an interested witness and his evidence is vague. Under these conditions it would be dangerous to rely on such oral dying declaration to rope in the appellant with a serious offence of intentionally causing the death of his sister-in-law.
It is also amply clear that when the oral dying declaration was made, the deceased Page No.# 20/24 was not in a fit state of mind and she was writhing with pain. The dying declaration made to PW-3 therefore has to be corroborated by other material evidence.
As dying declaration made to the Investigating Officer as well as the oral dying declaration cannot be relied upon, this case now rests squarely on the circumstantial evidence as propounded by the prosecution. Before embarking upon the discussions regarding the circumstantial evidence against the appellant, it is germane to mention that no mens rea to cause such an offence could be elicited through the evidence adduced by the prosecution. In a case of circumstantial evidence, mens rea of the perpetrator assumes great importance. No bitter animosity between the appellant and the deceased was brought to the fore.
34. The appellant was last seen by PW-7 running away from the place of occurrence towards the Southern side of the house. As soon as she heard the gunshot when she was in PW-5's house, PW-7 immediately rushed to her house and she saw her elder brother (appellant) running away with something in his hand. She has not stated that her elder brother was holding a firearm in his hand. Apart from PW-7, the other witnesses who immediately rushed to the spot after hearing the firing sound did not mention that they saw the appellant running away from the place of occurrence. This is one circumstance against the appellant which has to be proved to the hilt. Although PW-5 was with PW-7 immediately after the incident, she did not testify that she (PW-5) saw the appellant running away with something in his hand. The cross-examination of PW-7 depicts that she came out of PW-5's house around 5:30 PM after she heard the gunshot and about 10 to 12 people had already assembled in her house but she did not know if the other people had seen the appellant running away from her house. PW-7 has also admitted in her cross-examination that she did Page No.# 21/24 not see the appellant's face properly when he fled from the house. It is clear from the evidence that many people had already assembled when PW-7 reached the place of occurrence and when she saw her brother running away from her house. PW-7 immediately met the deceased after the incident but she did not mention about any statement made by the deceased regarding the person who caused the injuries. The last seen theory does not hold good because PW-7 admitted in her cross-examination that she did not see the appellant's face while he escaped. There is not a scintilla of evidence from the other witnesses who were already assembled in the place of occurrence regarding the appellant being last seen in the place of occurrence. PW-7's cross-examination clearly depicts that 10 or 12 odd people were already present in the place of occurrence after she reached home on hearing the gunshot.
The weapon of offence was also not recovered after a procrastinated investigation of one year.
35. The other circumstance projected by the prosecution is the conduct of the appellant immediately after the incident. The conduct of the appellant is relevant in this case. The appellant disappeared immediately after the incident and he was arrested by the Investigating Officer after 11 months. It is true that the appellant was arrested by the police after 11 months of the incident. A careful scrutiny of the charge-sheet and the evidences depict that the appellant was not shown as absconder. This incident allegedly occurred on 29.07.2014 and Charge-sheet No. 23/2015 was laid against the appellant on 03.07.2015. The argument of the prosecution that the appellant was absconding and evading arrest can be safely brushed aside.
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36. It is to be borne in mind that the doctor who performed the operation to remove the bullet from the victim's body was not examined as a witness. The Medical Officer who performed post-mortem was examined as a witness in this case and his evidence reveals that death was due to post-operative debility with septicemia. The fact that the deceased died 5½ months after the incident cannot be ignored. The appellant thus gets the benefit of doubt as the evidence does not connect the incident of firing to the death of the deceased. It has to be presumed that the deceased died after 5½ months i.e. on 16.01.2015, after the incident as a result of bullet injury sustained by her. Bullet was recovered when the victim was operated and the evidence of PW-13 (Rupa Thunsun) clearly depicts that the bullet was recovered when the victim underwent operation on 08.09.2014 and the police seized the bullet vide Ext.-3 and she affixed the signature as Ext-3(2) on the seizure list. The evidence of PW-1 clearly depicts that the bullet was fired from a factory made firearm. During the investigation which carried on for several months, no firearm was recovered except the bullet which was recovered after the operation was performed on the deceased.
37. In view of the foregoing discussions, it is hereby held that the prosecution has failed to prove beyond reasonable doubt that the appellant is guilty of offence under Section 25(1A) and 27(2) of the Arms Act. It may be noted that no weapon of offence was recovered during the course of investigation. The appellant was not found carrying prohibited arms in contravention of Section 7 of the Arms Act. The prosecution has also failed to prove beyond reasonable doubt that the appellant used the prohibited arms or prohibited ammunition in contravention of Section 7 of the Arms Act.
38. It is held that the circumstances do not form a complete chain. It is held that no mens Page No.# 23/24 rea could be established. The last seen theory does not hold good in this case. The prosecution has failed to prove that the conduct of the appellant after the incident forms a link to the chain of circumstances.
The Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 has held that :-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra [(1973)2 SCC 793] where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
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39. Reverting back to this case it is held that the prosecution has failed to prove beyond reasonable doubt that the appellant with the knowledge that the act was so imminently dangerous, caused the death (or the bodily injury which was likely to cause the death) of the deceased and committed such act. We would again like to reiterate that the circumstances do not form a complete chain. The appellant is accordingly, not held guilty of the offence of murder.
The Hon'ble Supreme Court has observed in Harbeer Singh Case (supra) that:
"11. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P.; State of Rajasthan v. Raja Ram; Chandrappa v. State of Karnataka; Upendra Pradhan v. State of Orissa and Golbar Husaain v. State of Assam)."
40. We, accordingly, hold that the appellant gets the benefit of doubt. The judgment and order of the Trial Court is hereby set aside. The appellant is acquitted from the charges under Section 302 IPC and Sections 25(1-A)/27(2) of the Arms Act on benefit of doubt and is set at liberty forthwith. Surety stands discharged.
JUDGE JUDGE Comparing Assistant