Ghanashyam Das vs State of Assam

J.N. Sarma, J.—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.

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 u/s 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 u/s 27.

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.

Let us first take up the question of Section 27. Mohmed Inayatullah Vs. The State of Maharashtra, where the Supreme Court in paragraph 12 pointed out as follows:

It is seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accuse must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly has to be excluded.

Mr. Choudhury submits in that particular case, a bare look at the deposition of the I.O. P.W. 2 will show that there is nothing to show that the information was given by the accused to him. On the other hand, Mr. P. Bora submits that it is not necessary that the statement of the person or information of the person should be recorded in writing. But at the same time, the law is that there must be some evidence to show that such information was given. There is no such evidence whatsoever. In that view of the matter, the question of utilizing Section 27 to convict the accused does not arise. Regarding discovery made by Sniffer dog Gade Lakshmi Mangraju @ Ramesh Vs. State of Andhra Pradesh, where the Supreme Court pointed out that the evidence based on sniffer dogs has in herent frailities. The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close to its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. The last, but not the least, is the fact that from ma scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals, Police dogs engaged in these actions by virtue of instincts and also by the training imparted to them Criminal Courts need not therefore bother much about the evidence based on sniffer dogs. Investigating exercises can afford to make attempts or forays with the help of make attempts or forays with the help of canine faculties but judicial exercise can ill afford them.

Next let us take up the question of dying declaration, hi order to appreciate the contention of Mr. Choudhury, we have looked to the First Information Report. The First Information Report itself shows as follows:

When asked who had assaulted him", Govinda said, "Ghanashyam", and became unconscious.

In the evidence P.W. 4 deposed as follows:

"Ghanashyam has cut me". Before I had reached the place of occurrence, I saw Ghanashyam running away in the direction of Hemanta Das�s house, Completely smeared with blood, Govinda was throwing him arms and legs. I then took him in my arms and shouted repeatedly saying, �Ghanashyam has cut Govinda�, I also said �Dada Oi Dada Oi �By� Dada

(b) Govinda gasped that it was Ghanashyam. When people asked who had cut him, Govinda named Ghanashyam. I went to call in a doctor.

(c) Govinda had given out a ware out mound saying, "Gha-Gha-Ghana-Ghanashyam".

Mr. Choudhury also draws our attention to the medical evidence. The medical evidence is as follows:

"External appearance"

One male body of average build dressed with-half ganji and one black coloured long pant with dried blood stain at places and body surfaces. Mouth and eyes closed. Face pale. Rigor mortis present all over the body.

Injuries found:

(1) Incised wound in the lateral and posterior aspect in the left side of the neck 8.5 cm x 5.5 cm x bony deep. 4th cervical vertebra is incised through and through. The underlying structures, can-notice vessels, nerves and the spinal cord are cut in the same level. The wound is placed horizontally.

(2) Incised wound 11 cm x 4.5 cm x 2.5 cm in the left side of the check 3 cm below the left year placed obliquely above downwards.

(3) Incised wound 11 cm x 2 cm x muscle deep 3 cm above the left ear in the parietal region placed obliquely above downwards and backwards.

(4) Incised wound over the vertex 10.5 cm x 2.5 cm x cervical cavity deep. Left parietal lobe and membrane and incised under the injury.

(5) Incised wound 9.5 cm x 2 cmx muscle deep in the right side of the check 3.5 cm in front of the right ear placed obliquely above downwards.

(6) Incised wound 8.5 cm x 6.5 cm x bony deep 4 cm below the right elbow joint I the posterior aspect of the forearm. Both bones of the fore- ami are incised and the forearm is adhered only with skill and muscles in the anterior aspect. The margins of all the wounds are sharp and clean. Ecchymosis present in the margins of the wounds. No ligature mark on the neck. Injury as already described.

All other internal organs are congested. No other injury on the body. No injury on heart and lungs which had no disease, but were congested.

Opinion:

Cause of dearth is haemorrhage and shock as a result of the injuries suffered in the body. All the injuries are antemortem caused by heavy sharp cutting weapon and homicidal in nature. These injuries can be caused by the khukri. Material Ext. 1 Ext. 5 is my report. Ex. 5 (1) is my signature with seal.

On the basis of this evidence Mr. Choudhury submits that the man was not in a position to make dying declaration. As will be seen from the evidence as quoted above, the man did not make any elaborate dying declaration. He only gave the name of the assailant and noting was put to the doctor that he was not in a position to speak. As a matter of fact, after he was injured he was removed to another place. Bauder was put to his head. So, it cannot be accepted as urged by Mr. Choudhury that the man was not in a position to speak at all or he was not in a position to make dying declaration. But the next question is that whether dying declaration inspires confidence. In this connection Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, That is a case on differing footing. That was a case of burn and there was 90% burn. The statement was recorded by the doctor. Certificate was appended below it, but the Supreme Court on consideration of the materials on record came to the finding that the patient was not in a position to speak and as such, no reliance was placed on the dying declaration and the man was acquitted. The next case relied on by Heikrujam Chaoba Singh Vs. State of Manipur, where the Supreme Court pointed out that an oral dying declaration no doubt can form the basis of conviction though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the Court must be satisfied about the truthfulness of the same and that the said declaration was made buy the deceased whole he was in a fit condition to make the statement. That was a case where dying declaration was made before a number of persons, but only the brother was examined and the other persons were not examined and as such, dying declaration was not acted upon. That is not the situation in the case in hand. The situation in the case in hand is different. Here dying declaration was made before P.W. 4 and in the First Information Report itself it was mentioned. Uka Ram Vs. State of Rajasthan, and the law has been laid down in paragraph 7 as follows:

In Tapinder Singh v. State of Punjab, this Court held: (SCC p. 119, para 5)

The dying declaration is a statement by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death and it becomes relevant u/s 32(1) of the Indian Evidence Act in a case in which the cause of that person''s death comes into question. It is true that a dying declaration is not a deposition in Court and it is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rale against the admissibility of hearsay evidence on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the Court in its guard while testing its reliability, buy imposing on it an obligation to closely scrutinize all the relevant attendant circumstances.

This Court in Dandu Lakshmi Reddy v. State of A.P., observed that on the fact situation of a case a judicial mind would tend to wobble between two equally plausible hypotheses-was it suicide, or was it homicide? If the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide can be eliminated justifiably. For that purpose a scruitiny of the dying declaration with meticulous circumspection is called for. It must be sieved through the judicial cullendar and if it passes through the gauzes it can be made the basis of a conviction, otherwise not. It was further held that in view of the impossibility of conducting the test on the version in the dying declaration with the touchstone of cross-examination, the Court has to adopt other tests in order to satisfy its judicial conscience that the dying declaration contained nothing but the truth.

Applying the position of law as laid down, we find that the dying declaration inspires confidence and it was proved by P.W. 4. In that view of the matter, we do not find any infirmity in the judgment. The appeal shall stand dismissed. The conviction shall hold the field.