Gauhati High Court
Sri Anurag Goswami vs The State Of Assam And Anr on 4 April, 2023
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GAHC010027532020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./55/2020
SRI ANURAG GOSWAMI
S/O- SRI DIMBESWAR GOSWAMI, R/O- JALUKKATA, P.O. MERAMUKH, P.S.
NARAYANPUR, DIST.- NORTH LAKHIMPUR, ASSAM, PIN- 784164.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM
2:SRI MAN MOHAN BARMA
S/O- DOBHOGA RAM BARMAN
R/O- VILL.- BHOGKUCHI
P.S. TIHU
DIST.- NALBARI
ASSAM
PIN- 78371
Advocate for the Petitioner : MR. R P SARMAH
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT
Date : 04-04-2023
(Malasri Nandi, J)
Heard Mr. R.P. Sarmah, learned Senior counsel appearing for the appellant. Also heard
Ms. B. Bhuyan, learned Additional Public Prosecutor appearing for the State and Mr. D. Bora,
learned counsel appearing for the respondent No.2.
2. This appeal has been preferred by the appellant Anurag Goswami challenging the
judgment and order dated 16.12.2019 passed by the learned Sessions Judge, Kamrup(M),
Guwahati in Sessions Case No. 258/2015, whereby the accused/appellant was convicted
under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to
pay a fine of Rs.10,000/- in default of payment of fine to undergo simple imprisonment for
6(six) months.
3. The prosecution case is that the informant Mon Mohan Barman lodged an FIR dated
26.11.2012 stating inter alia that on 25.11.2012 at about 6.30 p.m. while his uncle Khagen
Barman was on duty at S. Tel office, at Monal Tower under Dispur police Station, the
Accused/appellant Anurag Goswami along with another person had assaulted him with steel
strip and other sharp weapon inside the said office, thereby injuring him grievously in various
parts of his body. Immediately, his uncle was admitted to Guwahati Medical College and
Hospital(GMCH) with the help of 108 service but on the next date i.e. on 26.11.2012, his
uncle died in GMCH during treatment.
4. On receipt of the complaint, a case was registered vide Dispur P.S. Case No. 2537/2012
under Sections 448/302/34 IPC and the investigation has been commenced. During
investigation, the statement of the victim was recorded but subsequently, he died. The
investigating officer also recorded the statement of other witnesses, visited the place of
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occurrence and seized the weapon of offence from the place of occurrence and after
completion of investigation, charge-sheet was submitted against the accused/appellant
Anurag Goswami and another person Bimal Bonia under Section 302/34 IPC before the
Additional Chief Judicial Magistrate, Kamrup(M). As the offence under Section 302 IPC is
exclusively triable by the court of Sessions, the case has been committed accordingly.
5. During trial, the learned Sessions Court has framed charge under Section 302/34 IPC
against the accused/appellant Anurag Goswami and other accused Bimal Bonia which was
read over and explained to them to which they pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused persons, ten witnesses were examined by prosecution
and marked 14 exhibits before the trial court and three material exhibits. On the other hand,
the accused/appellant also adduced one witness in support of his case. After completion of
trial, the statement of both accused persons were recorded under Section 313 Cr.P.C. and all
the incriminating materials found in the evidence of the witnesses were put before them to
which they denied the same. According to them, they have been falsely implicated in this
case. After hearing the argument advanced by the learned counsel for the parties, the
learned trial court has convicted the accused/appellant Anurag Goswami as aforesaid but
acquitted the other accused Bimal Bonia. Hence, this appeal filed by the accused/appellant.
7. Mr. R.P. Sharma, learned Senior counsel for the appellant has argued that the learned
trial court failed to consider the evidence of P.W.9 in its proper perspective who was attached
to Dispur Police Station at the relevant time of incident and recorded the statement of the
deceased in the place of occurrence. The learned trial court also failed to consider that the
witness admitted in his cross-examination that he had recorded the statement of the
victim(Ext.-13) but the case was not registered. He received information at about 7 p.m. and
he recorded the statement of the deceased at 8 p.m. According to P.W.9, at that time, in the
hospital, the deceased was in conscious state of mind and in the hospital, definitely there
would have been doctor and nurses also whose signatures ought to have been taken in Ext.
13 which was considered to be dying declaration after taking the statement of the victim
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immediately after the incident.
8. It is also submitted by the learned Senior counsel for the appellant that the co-accused
Bimal Bonia was acquitted by the learned trial court. From the medical report, it appears that
the deceased sustained 14 number of injuries which leads clearly to reveal that the appellant
alone could not have attacked the deceased. The accused Bimal Bonia was acquitted only on
the flimsy ground shown by the trial court. Thus, the story of attack alleged to be caused by
the appellant was a product of figment of imagination and afterthought.
9. It is also the submission of the learned Senior counsel for the appellant that the so
called dying declaration made by the deceased was not properly recorded with all impartiality
and reasonableness which lent the said declaration unreliable. The learned trial court erred
interpretation of the provisions of Section 32 of the Indian Evidence Act, 1872 and the judicial
decisions as cited thereon. According to the learned Senior counsel for the appellant that the
judgment and conviction is bad in law and is liable to be set aside.
10. In support of his submission, learned Senior counsel has relied on the following case
laws-
i. Atbir vs Government of NCT of Delhi reported in (2010) vol.9 SCC 1.
ii. State of Rajasthan vs Teja Ram and ors. reported in (1999) 3 SCC 507.
iii. Thanu Ram vs State of Madhya Pradesh reported in (2010) vol. 10 SCC 353.
iv. Smt. Kamla vs State Of Punjab reported in AIR 1993 SC 374.
11. Per contra, Ms. Bhuyan, learned Additional Public Prosecutor has opposed the
submission of learned Senior counsel for the appellant and she has submitted that the
statement of the deceased was recorded by P.W.9 when he was alive immediately after the
incident. Subsequently, he died in hospital during medical treatment. At the time of recording
statement of the victim, the investigating officer did not feel it necessary to take the
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signatures of other persons as he was in a position to speak when the injured brought to the
hospital. As did not survive, his statement before the police can be treated as a dying
declaration. It is a settled position of law that conviction can be solely based on a dying
declaration. There is no irregularity found in the judgment of the learned trial court convicting
the accused/appellant and coming to a finding that the appellant was the perpetrator of the
crime and as such, needs no interference by this Court.
12. The Additional Public Prosecutor for the State has also submitted that the learned
Senior counsel for the appellant only stressed his argument on the point that as the another
accused Bimal Bonia was acquitted by the learned trial court on the same incident, the
appellant is also entitled to benefit of doubt.
13. On the other hand, Mr. D. Bora, learned counsel for the respondent No. 2 also
supported the submission of learned Addl. Public Prosecutor and has contended that though
the learned Senior counsel for the appellant has submitted that there were multiple dying
declarations in fact, there is only one dying declaration made by the deceased before P.W.9
which was exhibited before the learned trial court as Ext.13. The learned counsel for the
respondent No.2 by referring to the judgment of Nagabhushan vs The State of Karnataka
reported in 2021 vol.5 SCC 222, submitted that though the dying declaration was recorded by
a police officer, the same was admissible in evidence.
14. From the judgment of the learned trial court, it reveals that the conviction is mainly
based on dying declaration made by the deceased, the report of the finger print expert and
the circumstances found in the evidence of the witnesses.
15. P.W.1 Devojit Rajkhowa was working as Assistant Manager(commercial) in S.Tel Pvt.
Ltd. at Guwahati at the relevant time of the incident. He deposed in his evidence that the
occurrence took place in the month of November, 2012 at Monal Tower under Dispur police
station. On that day at about 7 p.m. he received a telephone call from one Nath who
informed him that Khagen Barman, Security Guard of Monal Tower was being assaulted by
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some unknown persons and 108 ambulance was called and shifted him in an injured
condition to the hospital for treatment. On receipt of the information, he went to Monal Tower
and found that the police had already arrived at the place of occurrence and started
investigation. He noticed blood stains on the floor of the gate of the security guard's room.
Police seized blood stained clothes and other articles vide Ext. 1, seizure memo wherein, he
put his signature. The cross-examination of P.W.1 was declined.
16. P.W.2 is the informant who is the cousin brother of the deceased. According to him, on
the date of the incident, he received a phone call from his cousin brother Nilakanta Barman,
who informed him that the deceased was being assaulted by the accused Anurag Goswami
and Bimal Bonia and he was admitted to GMCH, Guwahati. On receipt of the information, he
rushed to GMCH. In the hospital, he found his cousin brother undergoing treatment in the
emergency ward. He noticed bleeding from his head and on being asked, the deceased
disclosed that Anurag Goswami who came to S.Tel Pvt. Ltd. Company office at Monal Tower
on the date of incident, had attempted to steal computer sets, but the deceased stopped him
and thereupon, he was assaulted by a stick plate and an empty bottle of wine. The deceased
also told him that accused Bimal Bonia had assaulted him with an empty wine bottle. P.W.2
noticed bleeding injury on his left shoulder. On the next day of the incident i.e. on 26.11.2012
Khagen Barman died. Thereafter, he lodged the FIR before Dispur police station in connection
with the incident vide Ext. 2. It is also stated by P.W.2 that one Mr. Rajkhowa reported the
incident over phone to Dispur police station and accordingly 108 ambulance shifted him from
the place of occurrence to the GMCH in an injured condition.
17. In his cross-examination, P.W.2 replied that he came to know about the incident in
detail from the deceased, while he was in injured condition. P.W.2 admitted that he did not
mention the name of accused Bimal Bonia in his FIR.
18. P.W.3 Kumud Bharali, who was working as a Private Security Guard in Sagar Security
Agency at Bhangagarh, Guwahati stated that he knew the deceased who was working as a
security guard in the S. Tel Company Pvt. Ltd., Guwahati. He deposed in his evidence that on
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the relevant night, Managing Director of Sagar Agency informed him over phone that some
quarrel had taken place at S.Tel office and he rushed to the spot and on enquiry, he came to
know that the incident of assault had taken place and that the injured was shifted to GMCH
for treatment. Thereafter, he went to the GMCH and found the deceased was under
treatment. On the next day, Khagen Barman succumbed to his injuries in the hospital.
19. P.W.4 is the finger print expert. From her deposition, it reveals that in connection with
Dispur P.S. Case No. 2537/2012, she was directed by the Director, State Finger Print Bureau,
CID, Ulubari, Guwahati, Assam to examine the finger prints collected from the place of
occurrence. On examination of the specimen finger print of the accused Anurag Goswami in
relation to finger prints specimen which were collected from the place of occurrence, she
found both the specimen finger prints were identical with 14 characters of the appellant. The
report and the finger prints were exhibited vide Ext. Nos. 5 and 6 respectively.
20. In her cross-examination, P.W.4 replied that the specimen finger prints of Anurag
Goswami were obtained by Dispur police. When she reached the place of occurrence at about
10 p.m., she found some employees of S.Tel company and police personnel.
21. P.W.5 is the medical officer, Dr. Raktim Pratim Tamuli who conducted postmortem
examination on the dead body of the deceased on police requisition and on examination he
found the following injuries-
External Appearance- A male dead body average built and swarthy complexion was found
dressed with a brown coloured trouser, a brown coloured full shirt, a brown underwear, a
green half sweeter and a white vest. Blood clots were seen over the face (nostrils) and
wearing garments, scalp hair was shaved. Eyes and mouth remain closed. Anus-penis serotim
were healthy. Body was warm to touch and rigor mortis were fully developed all over the
body. Postmortem hypostasis was present over the back and fixed.
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Injuries
1. Stitched wound of length 3 cm apposed with single stitch was present
over the left frontal area of scalp which lies 4 cm aboveleft eye brow and 3 cm left
of midline.
2. 4 cm long stitched wound was present over left frontal area of scalp
apposed with 2 nos. of stitches which lies 0.5 cm behind injury No. 1 and 3 cm left
of midline.
3. Stitched wound of length 5 cm apposed with 4 nos. of stitches was
present over left frontal area of scalp which lies 8 cm left of midline and 10 cm
above left rings.
4. Stitched wound of length 7 cm apposed with 7 nos. of stitches was present
over left parietal eminence which lies 7 cm left of midline and 10 cm above left ear.
5. 6 cm long stitched wound apposed with 5 nos. of stitches was present over
left parietal area of scalp which lies 1 cm left of midline and 17 cm behind left eye
brow.
6. Stitched wound of length 5 cm apposed with 4 nos. of stitches which lies
transversely in the midline in parietal area which lies 2 cm infront of injury No. 5.
7. Stitched wound of length 3 cm apposed with single stitch was present
over right frontal area of scalp which lies 10 cm behind right eyebrow and 3 cm
right 7of midline.
8. Stitched wound of length 2 cm apposed with single stitch is present
over right frontal area of scalp which lies 9 cm above right eyebrow and 6 cm right
to midline.
9. 5 cm long stitched wound lies transversely over right frontal area which is
apposed with 4 nos. of stitches, 1 cm right to midline and 12 cm behind
right eyebrow.
10. An irregular stitched wound was present over right parietal eminence with
greatest dimension of 10 cm apposed with 15 nos. of stitches.
11. Stitches wound of length 11 cm was present the midline of occipital
area obliquely and apposed with 9 nos. of stitches.
12. Right hand was contused and swollen.
13. Left hand was contused and swollen.
14. Fracture of left index finger (proximal phalange) with contusion.
15. Laceration of right thumb distal phalange (dorsum) with missing of nail.
16. Laceration of size 0.5 cm X 0.2 cm X bone deep was present over dorsum
of left little finger.
17. Abrasion of size 1.5 cm X 1.5 cm was present over front of left knee.
18. Contusion of size 3 cm X 0.5 cm was present over left lateral wall of chest
in the midaxillery line in 5th intercostal space.
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No ligature mark was detected around the neck. On dissection underlying neck
tissues are found healthy.
Cranium and Spinal Canal - Scalp Externally as described. On dissection whole scalp
was found contused Haematoma formation was seen over right parietal area. Skull
and Vertebrae were healthy. Membrane and Brain-Pale, Spinal Cord- not examined.
Liver-Congested, Both Kidneys were congested. Bladder-Mucosa congested. Uterus-
Healthy, rest were are healthy. Mark of ligature on neck- as described.
Abdomen:- Walls healthy. Peritoneum-Pale. Mouth, Pharynx and Esophagus-
Mucosa pale and others healthy. Stomach-Mucosa pale and contains fluid mixed with
blood. Small intestine- Mucosa pale. Large intestine- Mucosa pale and contains gas
and faecal matter.
Thorax:- Walls- as described, Ribs and Cartilage-Healthy. Pleurae-pale. Larynx and
trachea- Mucosa pale and blood clots are found adherent to mucosa in trachea. Both
lungs were pale. Heart- healthy and empty. Vessels pale.
The Doctor opined that death was due to hemorrhage and shock following injuries
sustained over the body during life which were being caused by blunt weapon and was
homicidal in nature.
22. P.W.6 is the police constable who took the dead body of the deceased from the
GMCH.
23. P.W.7 is the Executive Magistrate, who conducted inquest on the dead body of the
deceased. According to him, during inquest, he found 14 numbers of cut marks on the
head. The left hand was swollen and there was an injury on the right thumb of the
deceased.
24. P.W.8 is the inspector of police S.B. Headquarter. According to him, after collecting
the finger print report and after perusal of the case diary, he submitted the charge-
sheet, against the accused Bimal Bonia and Anurag Goswami vide Ext. 12.
25. P.W.9 Sri Chandi Singha, S.I. of Police had recorded the statement of the
deceased. His deposition discloses that on 25.12.2012, he was attached to Dispur police
station. On that day, at about 7 p.m. he was on patrolling duty at Dispur area along with
staff. Then he received a phone call from the police station that an incident occurred in
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the first floor of Monal Tower. On receipt of the information, he visited the place of
occurrence and saw a person bleeding on the first floor. Thereafter, he recorded the
statement of the injured person Khagen Barman. At that time, O/C, Dispur police station
reached the place of occurrence along with staff and on his instruction, he took the
injured person to the hospital for treatment. The statement of the victim, which was
recorded under his handwriting vide Ext. 13 at the place of occurrence, was not taken in
a separate sheet.
26. In his cross-examination, P.W.9 stated that he received information at about 7
p.m. He recorded the statement of the injured person at about 8 p.m. and at that time,
the deceased was in his senses. There was no pagination in the case diary. The
suggestion that the case diary contained manipulated documents was denied by P.W.9.
27. P.W.10 is the investigating officer. He deposed in his evidence that on 25.11.2012
at about 6.30 p.m. he was informed by O/C Dispur PS over phone that some miscreants
had illegally entered Monal Tower, in the 1st Floor of S.Tel Office and by assaulting the
Security guard on duty, they had attempted to take away the Laptop from the said
office. On receipt of the information he proceeded to Monal Tower under the jurisdiction
of Dispur police station, where he found other police personnel, including P.W.9 on the
spot . At that time, the victim had already been taken to GMCH for medical treatment.
He noticed blood stains everywhere in the floor. Immediately after his arrival, the CID
Officers also arrived there with photographers. They started inspecting the place of
occurrence. Thereafter, he seized the articles with blood stains in presence of the
witnesses, vide Ext.1, seizure list. He also prepared a sketch map of the place of
occurrence vide Ext. 14. The CID officials also took finger prints from the place of
occurrence. On the next date, an FIR was lodged by one Monmohan Barman vide Ext.
2. He was entrusted to do the investigation after filing of the FIR. On the next morning,
two witnesses, Debajit Rajkhowa and Kumud Bharali appeared at the Police Station and
he recorded their statements. Before filing of the FIR, the investigation was initiated on
the basis of GDE No. 1725 dated 25.11.2012. In the FIR, the name of Anurag Goswami
was disclosed as the prime accused. Subsequently, he was arrested by the police of
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Narayanpur police station under North Lakhimpur District. As the name of Bimal Bonia
cropped up as one of two perpetrators of the crime, the police sent information to him
to appear before the police. Accordingly, Bimal Bonia appeared before the police station
and he was also arrested. On 26.11.2012, the victim Khagen Barman expired in the
GMCH. The inquest was conducted by the Executive Magistrate and the dead body was
sent for postmortem examination. He collected the postmortem report and as he was
transferred, he handed over the case diary to O/C, Dispur police station.
28. In his cross-examination, P.W.10 stated that the dying declaration was placed in
the case diary. He could not say whether it was submitted before the court or not along
with the charge-sheet. P.W.10 also admitted that the case diary was not paginated.
29. It is an admitted fact that the deceased was an employee of S.Tel Office, located
at Monal Tower under Dispur police station at the relevant time of the incident. The
allegation against the appellant is that on the date of the incident he came to S.Tel
office and attempted to steal computer sets and when the deceased tried to stop him,
he was assaulted by the accused/appellant along with another person Bimal Bonia.
Admittedly, there is no eye witness to the incident, except the deceased.
30. The learned Senior counsel for the appellant has stated that there are multiple
dying declarations which do not tally with each other and as such, the dying declaration
cannot be the basis of conviction of the appellant, as the other accused had already
been acquitted by the learned trial court.
31. The learned Senior counsel for the appellant also pointed out that according to
P.W.9, the statement of the victim was recorded at the place of occurrence, but from the
Ext. 13, it reveals that it was recorded at GMCH and there is no pagination in the case
diary. He also contended that as per Section 172 of Cr.P.C., the pagination in the case
diary is mandatory which has not followed in the case in hand. Under such a backdrop,
the dying declaration cannot be taken into consideration for convicting the appellant.
32. It is also the case of the appellant that as the Magistrate did not record the dying
declaration, it must be regarded as suspicious and should be discarded.
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33. It is true that a police officer(P.W.9) has recorded the dying declaration. The
deceased died on the next day of the incident, after the dying declaration was recorded
by P.W.9. A Magistrate could and should have been called to record a dying declaration.
From the case record, it also reveals that there was no pagination mark in the case
diary. The dying declaration was not recorded in a separate sheet, it was recorded in the
case diary in the handwriting of P.W.9. However, the dying declaration itself can be
treated as the FIR and the case can be registered on the basis of a dying declaration.
Another police officer has made the investigation on the basis of the FIR lodged by
P.W.2, the day after the death of the deceased.
34. It will have to be seen whether a dying declaration recorded by a police officer
can be accepted in the absence of any other dying declaration recorded by any
Magistrate and whether such a dying declaration can be the sole basis to uphold a
conviction made thereupon by the learned trial Court. It will be apt to consider the
jurisprudence in this behalf at this stage itself.
35. In the case of Laxman vs State of Maharashtra, reported in 2002 ALL MR
(Cri)2259, it has been held that recording of the dying declaration by the Magistrate is a
rule of caution. Though it is the usual practice, there is no requirement of law in that
behalf. There is also no specified statutory form required for recording it. The
evidentiary value and the weight to be attached to it depends upon the facts and
circumstances of each case. The court is required to be satisfied about the state of mind
of the person making the statement. Hence, even if it is not recorded by the Magistrate
or even if it does not contain the endorsement showing the examination by the Doctor,
if the person recording it satisfies himself about the condition of the deceased and if it is
found to be truthful it can be accepted by the court.
36. In the case of State vs. Singari & Anr., reported in 2002(6) KLJ 52, the dying
declaration came to be challenged before the Division Bench of the Karnataka High
Court, as it did not contain the doctor's certificate in the prescribed form, regarding the
fitness of the victim to make the statement. It was held that where the dying
declaration can inspire confidence in the court's mind with regard to the veracity and
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credibility and also the acceptability of the dying declaration, a mere technical lapse
would not water down its evidentiary value. In that case the dying declaration was
accepted even in the absence of a doctor's certificate. Conviction on that basis was held
to be correctly made. In that case the incident took place on 25/04/1994. The deceased
died of gunshot injuries on 27/04/1994. He had stated about the three accused in his
statement, which came to be recorded after the duty doctor's sanction was taken by the
police officer. The Doctor had examined the patient and opined that he was in a
sufficiently fit condition to make a statement. The dying declaration did not contain the
requisite certificate in the prescribed form. The contention that the doctor's certificate
should have been superscribed on the dying declaration by the Doctor's endorsement
was rejected.
The Hon'ble Supreme Court had held that where the recording of dying declaration
would inspire confidence in the mind of the court about the veracity, credibility and
acceptability of the dying declaration, mere absence of the certificate was not a good
enough technical lapse to reject the dying declaration.
37. In the case of the Vidhya Devi & Anr. vs. State of Haryana, reported in AIR 2004
Supreme Court 1757, the dying declaration recorded by a police officer and endorsed by
a Doctor came to be accepted, even though no further dying declaration was recorded
by the Magistrate during the four days when the deceased lived, after her dying
declaration was recorded. In that case the deceased had stated that her husband,
father-in-law, mother-in-law, sister-in-law and brother-in-law had tortured her in respect
of dowry. She had earlier lodged a written complaint with the police. On 16.11.1993 at
about 10:30 AM when her husband and father-in-law were away, her mother-in-law,
brother-in-law and sister-in-law set her ablaze. Her mother shifted her to the hospital.
The medical officer sent information to the police station. The police arrived in the
hospital. The medical officer initially opined that the victim was not in a fit position to
make the statement. Later in the evening, the police once again contacted the Medical
officer with a written request. That time the Doctor opined that she was fit to make the
statement. Before the police officer recorded the statement of the victim, the Magistrate
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was contacted. He refused to record any statement before the case could be registered.
Hence the police officer himself recorded her statement. In the statement she made a
complaint of dowry demands against the whole family. She complained about only three
of her family members with regard to setting her on fire that day. She ultimately expired
on 20-11-1993. The prosecution relied upon the FIR which was registered as a dying
declaration. It was contended that the dying declaration recorded by the police officer
on 17/11/1993 could not be accepted, as she was not in a fit and proper condition to
give a statement and the dying declaration was recorded by the police officer. Since it
was seen to have been recorded on obtaining the opinion of the doctor, it was signed by
the deceased and hence was held by the Court not to have suffered from any infirmities.
38. In the case of the Tejram s/o. Ukandrao Patil vs. State of Maharashtra , reported in
2009 ALL MR (Cri) 1047, it was held that though the dying declaration was not recorded
by the Special Magistrate, it could be accepted if it was otherwise reliable. In that case
the accused came home in a drunken condition and seeing his mother-in-law in the
house he went into a rage, abused his wife and her mother and poured kerosene over
his wife and set her on fire. Her mother, as well as the landlady who intervened, both
tried to save her. In the process they all sustained injuries. The Special Judicial
Magistrate recorded the dying declaration of the mother-in-Law, but not of the wife. The
wife's statement was recorded by the police officer who failed to obtain the medical
fitness certificate from the Doctor regarding her physical and mental condition. Despite
the absence of these two important facts, upon considering the evidence as a whole and
placing reliance upon the case of P.V. Radhakrishnan vs. State of Karnataka, AIR 2003
SC 2859 and Laxman vs. State of Maharashtra, AIR 2002 SC 2973, the dying declaration
of the wife showing homicidal death came to be accepted.
39. The observations of the Supreme Court in Laxman's case (supra) that the dying
declaration could be recorded by the Magistrate, a doctor or a police officer were taken
into account. The observations of the Hon'ble Supreme Court that there was no legal
impediment in admitting the dying declaration recorded by the police officer would
guide us in this case also in accepting the dying declaration of Khagen Barman.
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Consequently, as held in that case, we are satisfied that we can accept his dying
declaration also though it was not recorded by the Magistrate, if the other facts and
circumstances of the case reflected its truthfulness and authenticity. In such
circumstances there would be no legal impediment to make it the basis of conviction.
40. Before we revert to the facts of this case, we may refer to the judgment in the
case of Subash Sony vs. State of Madhya Pradesh , reported in 2009 vol. 6 SCC 647,
which has laid down the requirements for acceptance of a dying declaration thus:
1.Dying declaration does not necessarily require corroboration.
2.If it is true and voluntary it can be accepted even without
corroboration to be a basis for conviction.
3.The court is to scrutinise the dying declaration carefully to observe
whether the deceased was in a fit state to make the declaration.
4.If it is suspicious it should not be acted upon without corroborating
evidence.
5. If the deceased was unconscious and could not have made it, it
should be rejected.
6.A dying declaration which suffers from infirmity cannot form the
basis of conviction.
7.It has not to be rejected merely because it does not contain all the
details of the occurrence.
8.It has not to be discarded merely because it is brief. The court
normally looks up to the medical opinion as to see the fit medical
condition of the deceased, but an eye witness account stating that the
deceased was in a fit mental condition could be accepted over the
medical opinion.
9.If the prosecution version differs from the dying declaration, the
dying declaration could not be accepted.
10.Whenever more than one statement is made, the first in time was
to be preferred. However if a plurality of the dying declaration is
shown to be trustworthy and reliable, it had to be accepted.
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41. In that case a doctor drove the deceased to the hospital in his car. He
deposed that he heard the deceased replying to his friend the names of his
assailants. The Doctor was an independent witness. His deposition was
accepted. The deceased was injured in the leg and thigh. It was observed that
lack of consciousness would be progressive. Hence, the oral statement made
before reaching the hospital was accepted.
42. In the light of the aforesaid legal propositions, the statement of the
witnesses are to be considered to arrive at a decision whether the dying
declaration made by the deceased is trustworthy or not. According to P.W.2, he
had received information regarding injury sustained by the deceased that he
was admitted at GMCH, Guwahati. He went to the hospital and found his cousin
brother i.e. the deceased undergoing treatment in the emergency ward. On
being asked, the deceased disclosed that Anurag Goswami, who came to S.Tel
office Pvt. Ltd. Company office at Monal tower, attempted to commit theft of
computer sets but the deceased stopped him and thereupon, he was assaulted
by him with a stick plate and an empty bottle of wine. The accused Bimol Bonia
also assaulted the deceased with an empty wine bottle.
43. From the evidence of P.W. 2, it reveals that at that time he i.e. deceased
was in conscious state of mind and P.W.2 also noticed injuries on his head and
others parts of his body. P.W.2 also stated that at the time of narration about
the incident in detail by the deceased, his relatives Champak Majumder, Puna
Majumdar and Hitesh Barman; two private security in-charges; two police
personnel were also present. Though, P.W.2 was cross-examined by the
defence, no question was raised regarding the mental condition of the
deceased, except a suggestion put to P.W.10 that the deceased was not in a
sound physical and mental condition to speak about the incident to P.W.2, which
Page No.# 17/27
was denied.
44. According to P.W.9, on receipt of an information regarding the incident
which occurred in the first floor of the Monal Tower, he went to the place of
occurrence and found the deceased in an injured condition and he immediately
recorded the statement of Khagen Barman. At that time, the O/C, Dispur police
station reached the place of occurrence along with his staff and on his
instruction, he took the injured to the hospital for treatment. The statement of
the deceased was recorded at the place of occurrence vide Ext.13, but from the
Ext.13 it reveals that the statement of the deceased was recorded at GMCH at 8
p.m. on the day of the incident. The incident occurred on 25.11.2012. The
evidence of P.W.9 was recorded on 24.04.2017 i.e. after 5 years of the incident.
Naturally P.W.9 was not in a position to recollect the exact place where he
recorded the statement of the deceased, but in his cross-examination P.W.9
stated that at that time in the hospital, the deceased was in his senses, which
implies that the deceased in a fit state of mind to narrate the incident.
45. From Ext. 13 it also reveals that he brought the deceased to GMCH and
issued requisition for providing treatment. After questioning the injured person
in connection with the case, he recorded the statement of the deceased which
reads as under-
"I am working as a security guard in a private company called S.Tel
situated at Monal Tower. At about 6 a.m. today, i.e. on 25.11.12, while I
was on my duty, one boy by name Anurag Goswami came along with
another boy. Earlier, Anurag Goswami was a security guard at S.Tel
Company. At present, he doesn't work here. I know him. Anurag Goswami
tried to take away the computer which was there inside the office. When I
resisted him, Anurag Goswami and his companion assaulted me with iron
pipe and rod which were there inside the office. I sustained grievous
Page No.# 18/27
wound on my head. As I fell down on the ground, Anurag Goswami and
his companion fled from the spot. When I somehow went upstairs and
knocked at the door of a office, the people of that office came out and
informed 108 ambulance service."
46. What transpires from the statement recorded by P.W.9 and the evidence of
P.W2 is that there is no material difference between the oral and the written
dying declaration of Khagen Barman(deceased). It is true that in Ext.13 the
deceased stated the name of Anurag Goswami and another person, but
according to P.W.2 the deceased stated the name of Anurag Goswami and Bimol
Bonia, who assaulted him with an iron pipe and an empty wine bottle. It
appears from the medical evidence that the deceased sustained 14 number of
injuries on his person. It also transpires that not only the present appellant, but
the other person also assaulted the deceased causing several injuries on the
person of the deceased. However, as the other accused Bimol Bonia was
acquitted by the learned trial court and there is no appeal preferred by the State
against his acquittal, we have nothing to say at this stage whether the acquittal
was right or wrong.
47. Another point to be noted herein is that after the occurrence of the
incident, the CID inspector visited the place of occurrence, took the
photographs and the finger prints from the place of occurrence, which matched
the finger prints found in the place of occurrence with the present appellant,
which cannot be overlooked.
48. The accused/appellant has examined one witness i.e. D.W.1 Nihar Jyoti
Goswami who is the brother of the appellant. From his deposition, it reveals that
on 26.11.2012, police came to their house from Narayanpur police station in
search of his younger brother i.e. the appellant and he told them that he was
Page No.# 19/27
not at home. The police told him that there had been an incident of fight and
assault in Guwahati. Then he told the police that his brother came from
Guwahati on 22.11.2012. He then brought his brother to the police station and
police arrested him and brought him to Guwahati.
49. In his cross-examination, D.W.1 replied that his brother was working at
S.Tel office for about one year. He was all along residing at Narayanpur. He did
not know what had happened in Guwahati. He came to know about the incident
only when police came to his house.
50. By examining the witness D.W.1, the appellant tried to prove that he was
not present on the spot when the incident took place. Though D.W.1 was
examined to prove the appellant's plea of alibi, it was not proved that he was at
his home at Lakhimpur since 22.11.2012. No independent witness like any
neighbour etc. was examined to prove the plea of alibi that they had seen the
appellant in Lakhimpur on the date of incident. It also reveals that when the
statement of the appellant was recorded under Section 313 Cr.P.C., he did not
utter a single word that he was not present on the spot and he was at
Lakhimpur in his house on the date of incident and he was there at Lakhimpur
since 22.11.2012. In his statement under Section 313 Cr.P.C., the appellant only
alleged that he has been wrongly arrested by police. He took the plea that he
did not know anything about the incident and that all the evidence against him
were false.
Apparently, the plea of alibi is not proved beyond reasonable doubt. Apart
from that, the appellant himself was not examined to prove the plea of alibi.
Under such backdrop, it cannot be said that the accused/appellant was not
present in the place of occurrence on the day of incident i.e. 25.11.2012.
Page No.# 20/27
51. We shall now examine whether the approach made by the learned
Sessions Court, in judging the guilt of the appellant on the premise that the
acquitted person also participated in the offence has resulted in any error.
52. The powers of the appellate court in dealing with an appeal against an
order of conviction is defined under Section 386(1)(b) of the Code of Criminal
Procedure, 1973 corresponding to Section 423(1)(b) of the Code of 1898. In the
matter of appreciation of the evidence, the powers of the appellate court are as
wide as that of the trial court. It has full power to review the whole evidence. It
is entitled to go into the entire evidence and all relevant circumstances to arrive
at its own conclusion about the guilt or innocence of the accused.
53. In Sunder Singh vs State of Punjab reported in AIR 1962 SC 1211, it was
held that the provisions of Section 423(1)(a) do not create a bar against the
appellate court considering indirectly and incidentally a case against the person
who was acquitted, if that becomes necessary when dealing with the case in
the appeal presented on behalf of the other accused who are convicted. In
considering the evidence as a whole, the appellate court may come to the
conclusion that the evidence against the person acquitted was also good and
need not have been discarded. When several persons are alleged to have
committed an offence in furtherance of the common intention and all except
one are acquitted, it is open to the appellate court to find out on a reappraisal
of the evidence that some of the accused persons have been wrongly acquitted,
although it could not interfere with such acquittal in the absence of an appeal
by the State Government. The effect of such a finding is not to reverse the
order of acquittal into one of conviction or visit the acquitted person with
criminal liability. The finding is relevant only in invoking against the convicted
person his constructive criminality.
Page No.# 21/27
54. The general principle of criminal liability is that it primarily attaches to the
person who actually commits an offence and it is only such person that can be
held guilty and punished for the offence. Sections 34 and 149 of the Penal Code
deal with the liability for constructive criminality. Section 149 creates a specific
offence and postulates an assembly of five or more persons having a common
object. Section 34 has enacted a rule of coextensive culpability when offence is
committed with common intention by more than one accused. The offence of
criminal conspiracy punishable under Section 120-B IPC, consists in the very
agreement between two or more persons to commit a criminal offence. Before
these Sections can be applied, the court must find with certainty that there were
at least two persons sharing the common intention of five persons sharing the
common object of two persons entering into an agreement. The principle of
vicarious liability does not depend upon the necessity to convict a requisite
number of persons; it depends upon proof of facts beyond reasonable doubt
which makes such a principle applicable.
55. In the case of Harshadsingh v. State of Gujarat, AIR 1977 SC 710, it was
held that if some out of several accused are acquitted but the participating
presence of plurality of assailants is proved, the conjoint culpability of the crime
is inescapable. When more persons than one are prosecuted and one of them is
convicted and others are acquitted, the order of acquittal cannot be set aside
unless an appeal has been duly preferred in that behalf against the said order.
But there is no bar to the appellate court acting under Section 386 of the Code
of Criminal Procedure to appreciate the whole evidence in a given case for the
purpose of accepting or rejecting the appeal before it. The evidence examined
as a whole may show that the appellant is guilty under Section 34 of the Indian
Penal Code having shared a common intention with the other accused who are
Page No.# 22/27
acquitted and the acquittal of these persons was bad. There is nothing in law to
prevent the appellate court from expressing that view and recording that
finding. The conviction of the appellant in such a case could be maintained on
the basis of that finding. This is the correct legal approach to prevent
miscarriage of justice. A wrong and erroneous order of acquittal though
irreversible in the absence of an appeal by the State would not operate as a bar
in recording constructive liability of the co-accused when concerted action with
common intention stands proved.
56. In Sunder Singh case (supra), four persons were tried for offence under
Section 302/34, IPC. The Sessions Judge gave the benefit of doubt to Rachpal
Singh and acquitted him, but convicted the other three of the offences charged.
No appeal was preferred against the acquittal of Rachpal Singh. But the three
convicted persons appealed to the High Court. The High Court held that Rachpal
Singh was present at the scene of occurrence and all the four accused had the
common intention alleged by the prosecution. The appellants in that case
contended before the Supreme Court that the High Court had no jurisdiction or
authority to embark upon an enquiry into the propriety or validity of the
acquittal of Rachpal Singh and that its finding that Rachpal Singh had taken part
in the offence as alleged by the prosecution had introduced serious infirmity in
the judgment of the High Court. It was pointed out that when the High Court
considered the criticism against the prosecution evidence based on the
assumption that the said evidence was found to be unreliable in so far as
Rachpal Singh is concerned, it was not appreciating that evidence with a view to
reverse the order of acquittal passed in favour of Rachpal Singh; it was
appreciating evidence only with a view to decide whether the said evidence
should be believed against the appellants before it and observed thus-
Page No.# 23/27
"Indeed, as an appellate court, the High Court has to consider indirectly
and incidentally the evidence adduced against an accused person who had
been acquitted by a trial court in several cases where it is dealing with the
appeals before it by the co-accused persons who had been convicted at
the same trial and in doing so, the High Court and even this Court
sometimes records its indirect conclusion that the evidence against the
acquitted persons was not weak or unsatisfactory and that acquittal may
in that sense be regarded as unjustified."
57. These observations indicate that the High Court is entitled to evaluate the
prosecution evidence and arrive at its own conclusion. Such assessment is for
the limited purpose of determining whether the infirmity which led to the
acquittal of one of the accused persons could be availed of by the other accused
who had been convicted. On re-examination of the evidence the appellate court
is free to reach its own conclusion which may be contrary to the one reached by
the trial court while acquitting the co-accused. It can certainly come to an
independent finding that evidence against the acquitted accused was
satisfactory and could not have been discarded. On the basis of such a finding,
the appellate court does not proceed to disturb the order of acquittal which has
become final. It can certainly consider the impact of its conclusion on the case
of the appellant before it. If on the evidence, the High Court can unmistakably
arrive at the conclusion that the appellant and acquitted person had acted in
furtherance of their common intention, the conviction of the appellant with the
aid of Section 34 is legal. It would be a travesty of justice if no conviction can
be founded with the aid of Section 34, notwithstanding the finding that the
acquitted person was in fact one of the participants in the offence.
58. The question whether conviction under Section 120-B is maintainable in
Page No.# 24/27
view of the fact that the alleged co-conspirators have been acquitted was
considered in Bimbadhar Pradhan v. State of Orissa , reported in 1956 SCR 206.
In that case, the appellant and his four companions were charged with criminal
conspiracy under Section 120-B IPC. All the four co-accused were acquitted, but
the appellant alone was convicted. The Court found that the conviction can be
supported as the approver was one of the co-conspirators. It was argued that
the approver was not named in the charge and, therefore, the appellant was
entitled to acquittal. The Court held as under-
"Learned counsel for the appellant pressed upon us the consideration that
notwithstanding the state of affairs as disclosed in the evidence, the
appellant was entitled to an acquittal because in the charge as framed
against him there was no reference to the approver. He contended that
the rule upon which the accused was entitled to an acquittal was not a
matter of practice but of principle. In the instant case we are not sure that
the acquittal of the co-accused by the trial court was well founded in law
or justified by the evidence in the case. The trial court has not disbelieved
the evidence led on behalf of the prosecution. It has only given the
benefit of the doubt to the accused whom it acquitted on grounds which
may not bear scrutiny. But as the case against those acquitted persons is
not before us, we need not go any further into the matter."
59. In the case In Marachalil Pakku v. State of Madras, AIR 1954 SC 648, two
appellants were charged and convicted along with five others for having
constituted an unlawful assembly and committed murder under Section 302
read with Section 149 IPC. In appeal before the High Court, five accused were
given the benefit of doubt and acquitted. Before the Court in appeal, it was
contended that the said five accused having been acquitted and in the absence
Page No.# 25/27
of a charge that five other unknown persons constituted an unlawful assembly,
the two appellants could not be held to be members of the unlawful assembly
which had the common object. The Hon'ble Supreme Court after reviewing the
evidence and weighing the judgment of the High Court held that there was no
scope left for introducing into the case the theory of benefit of doubt, and the
High Court was in error in acquitting accused 3 to 7, and that though the
acquittal stands, that circumstance could not have affected the conviction of the
appellants under Section 302 read with Section 149. Where in very firm
language a finding has been given that seven persons took part in the crime,
the conviction of the two appellants for murder under Section 302/149 was held
fully justified.
60. Like Section 149, Section 34 also deals with cases of constructive criminal
liability. It provides that where a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone. The essential
constituent of the vicarious criminal liability prescribed by Section 34 is the
existence of common intention. If the common intention in question animates
from the accused persons and if the said common intention leads to the
commission of the criminal offence charged, each of the persons sharing the
common intention is constructively liable for the criminal act done by one of
them. Just as the combination of persons sharing the same common object is
one of the features of an unlawful assembly, so the existence of a combination
of persons sharing the same common intention is one of the features of Section
34.
61. In the case of Sukh Ram v. State of U.P., reported in (1974) 2 SCR 518, it
was held that in view of the unambiguous evidence tendered by the prosecution
Page No.# 26/27
in the Sessions Court, no prejudice can be said to have been caused to the
appellant by reason of his conviction under Section 302 read with Section 34,
IPC, even though the two other accused specifically named in the charge had
been acquitted. The High Court was certain that there were three culprits and
the appellant was one of them. It is clear that notwithstanding the charge, the
acquittal of the two accused raised no bar to the Conviction of the appellant
under Section 302 read with Section 34 IPC.
62. The authorities cities above thus show that it is not essential that more
than one person should be convicted of the offence and that Section 34 Indian
Penal Code can be invoked if the Court is in a position to find that two or more
persons were actually concerned in the criminal offence sharing a common
object. Where the evidence examined by the appellate court unmistakenly
proves that the appellant was guilty under Section 34, having shared a common
intention with the other accused who were expressing that view and giving the
finding and determining the guilt of the appellant before it on the basis of that
finding.
63. We have noticed the series of decisions where the view held is that when
a definite number of known persons were alleged to have participated in the
crime and all except the appellant were acquitted, the appellant alone cannot be
convicted under Section 34 I. P. C. and he would be liable only for his individual
act of assault, [(Probhu Babaji Navle v. State of Bombay, AIR 1956 SC 51;
Krishna Govind Patil v. State of Maharashtra, (1964) 1 SCR 678; Baul v. State of
U.P., (1968) 2 SCR 450 (454); Maina Singh v. State of Rajasthan, (1976) 3 SCR
651; Karnail Singh v. State of Punjab, AIR 1977 SC 893 and Piara Singh v. State
of Punjab, (1980) 2 SCC 401.]
64. In view of the aforesaid discussion, we are of the view that the learned
Page No.# 27/27
Sessions Court was justified in convicting the accused/appellant under Section
302 IPC, which is therefore maintained. Regarding the acquittal of other
accused, there is no appeal preferred by the State Government. Under such a
backdrop, we are not in a position to reverse the acquittal of the co-accused in
absence of a State appeal.
65. In the result, the appeal is dismissed.
66. Send down the LCR.
JUDGE JUDGE
Comparing Assistant
