GHANASHYAM DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS appeal has been filed by the accused Ghanashyam Das against the judgment dated 6. 3. 98 passed by the learned Sessions Judge, Kamrup at Guwahati in Sessions case No. 67 (K)/93. By the impugned judgment the learned Judge convicted the accused appellant to rigorous imprisonment for life and to pay fine of Rs. 5000/- in default to payment of fine to undergo further rigorous imprisonment for one year.

(2.) THE prosecutor story, in brief, is that on 7th July, 1990 at about 8 p. m. , the informant had gone to the house of Bhabani Sarma of the same village on a social visit. He was there for some time and Gobinda Das the deceased was also at the house of Bhabani Sarma. After some time they left for their respective houses. When they reached main road they also talked for a couple of minutes there Gobinda took leave of the informant and left for home on a cycle. Hardly the informant had taken a couple of steps on his way to his home, he heard Govinda giving out a fearsome cry saying "aiyo Morilo" (Mother, I am dying) at a distance of 20/30 yards Immediately, the informant rushed to the place of occurrence and he saw that a man ran away in the direction of Hemanta Das's house. He found Govinda on the road with a number of wounds on the parts of his body and when asked who had assaulted him, Govinda said, "ghanashyam" and became unconscious. After that the informant raised hue and cry and other persons came. Later on Govinda was removed to a primary health centre. The informant came to learn that after careful examination the doctor declared him dead. On this, a case was registered and he the accused faced trial in the aforesaid Sessions case. The whole case of prosecution rests on two things (i) dying declaration and (ii) discovery under Section 27 of the Evidence Act. So, in order to decide the culpability of the accused in this particular case, it is not necessary to go to the other evidence save and except "dying declaration" made before the informant and as to whether there is some force with regard to the discovery under Section 27.

(3.) WE have heard Mr. J. M. Choudhury, learned Senior Advocate for the appellant and Mr. P. Bora, learned PP, Assam. Mr. Choudhury submits that the conviction on the basis of discovery cannot be made in this case as requirement of Section 27 were not satisfied. He further submits that discovery of the shoe by Sniffer dog is not a conclusive piece of evidence and it is fragile piece of evidence and no conviction can be made on that basis, (ii) dying declaration in the instant case does no inspire confidence and he submits referring to the medical evidence that the injured was not in a position to speak and as such, this dying declaration should be discarded. If these two things go there is not question of convicting the accused-appellant. On the other hand, Mr. Bora, learned PP submits that as found by the trial Court both the factors mentioned above can be utilized to convict the accused. He submits that dying declaration is the most natural thing made by the deceased and it was itself mentioned in the First Information Report and that should be given due consideration.