MADHAB PAUL Vs. STATE OF ASSAM

JUDGEMENT

(1.) In Sessions Case No. 45/92 the four accused appellants were convicted and sentenced by the learned Sessions Judge, Silchar under Section 148/304/149 IPC and sentenced to suffer imprisonment for seven years and a fine of Rs.2,000/- under Section 304/149 IPC and imprisonment for 2 years and a fine of Rs.1,000/- under Section 148 IPC.

(2.) On 8.5.87 at about 11 PM one Dasu Basak informed the Police that his nephew Babul Basak has been stabbed by some miscreants and the injured is lying near the SubhasNagar N.C.C. Office. The injured was later on removed to hospital where he succumbed to his injuries. An FIR was lodged and after usual investigation charge-sheet was submitted. In this case the death of the deceased Babul Basak as a result of the anti- mortem injuries sustained by him is not disputed. There is overwhelming oral and medical evidence and it is not disputed that this is a case of homicide. In this case admittedly there are no eye witnesses, that is, none of the witnesses saw the deceased being assaulted. The conviction has been rendered on the basis of the following: (1) Oral dying declaration of the deceased; (2) Circumstantial evidence regarding fleeing of the accused persons from the place of occurrence; (3) The enemity between the parties.

(3.) The prosecution case is that while the injured was removed to a hospital in a car, he made an oral statement in presence of P.Ws. 3,4 and 5 naming the accused persons as the assailant. The learned Trial Judge has held that in the instant case the dying declaration was not made immediately after the occurrence when the witnesses arrived at the place of occurrence but later on, while removed to a hospital in a car. The allegation that the alleged statement was made in the presence of interested witnesses only was brushed aside by the trial court stating that only interested persons are expected to be near the victim at such hours and as such they are natural witnesses. I find no fault with the above reasoning. However, the moot point for consideration is whether the deceased was in a position to make the alleged statement as claimed by the 3 witnesses. Admittedly, the dying declaration is not in writing and it was oral. The Doctor who examined the injured prior to his death has not been examined by the prosecution for the reasons best known to them. P.W.-8 is Dr. B.K. Bora, Professor and Head of the Department of Forensic Science, Silchar Medical College who held the autopsy of the dead body. The Doctor found the following 7 injuries: