Gauhati High Court
CRL.A(J)/6/2019 on 2 December, 2022
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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
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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)
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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
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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
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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.
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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.
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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.
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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
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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
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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
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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:-
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"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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
