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Petitioner: REJAN ALI CHOWDHURY (REJWAN ALI) VS Respondent: THE CROWN
P L D 1956 Dacca 204
P L D 1956 Dacca 204
Before: Ellis C. J, and Badiuzzaman, J
REJAN ALI CHOWDHURY (REJWAN ALI) ‑ Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 117 of 1954, decided on 9th June; 1954.
Dying declaration‑---
--Credibility and value of‑‑‑ Vary with circumstances of each case‑Recorder‑Not to record his inter pretation of expression used by deceased.
The credibility and value of a dying declaration vary with the circumstances of each particular case and the nature of the record made.
Where a declaration was recorded when the effects of wounds had deadened all feelings and confused the deceased's intellectual power and the recorder of the dying declaration said that as the language of the deceased was not correct, lie imp roved the language retaining the full sense.
Held : the declaration was not without blemishes and therefore not to be relied upon. The function of the recorder was not to record his interpretation of the expression used by the deceased but to have recorded the actual words uttered; leaving the interpretation to the Court.
T. Talukdar and Naim‑ud‑Din Ahmad for Appellant.
A. M. Sayem for the Crown.
JUDGMENT
BADIUZZAMAN, J.‑The appellant Rejan Ali Chowdhury was tried by Mr. A. Mannan, Assistant Sessions Judge, Sylhet, with the aid of four Assessors on charges under sections 304, 326 and 324 of the P. P. C. The Assessors unanimously found the appellant not guilty in respect of the offences charged with. The Judge, however, rejected their opinion and con victed him under all the three sections and sentenced him to rigorous imprisonment for six years under section 304, Part II, one year under section 326 and four months under section 324.
The case arises out of an incident which took place on the 23rd of May 1953, at about 8 p. m. at Silua Tea Garden under Police Station Kulaora in the district of Sylhet. On that day the Bus No. 554 (E. B. L.) belonging to cane Montaz Ali Choudhury of jury came to the Silua Tea Garden Bazar on the market day as usual. The deceased Jagu and a Land Custom peon detected that the driver of the Bus was carrying 2 bundles of India made Biris. They attempted to seize the Biris but this was taken exception to by the driver. An altercation followed and in the course thereof the driver with the aid of several others dragged Jagu into the Bus and gave start to it. The Bus proceeded towards the north but Jagu raised alarm asking the Chowkidar of the garden to close the garden gate. Before the Bus could go out of the garden, the Chowkidar closed the gate and the Bus stopped about 200 cubits south of the gate. As soon as it stopped the deceased attempted to get down from it and as he got down, the driver stabbed him on his shoulder and abdomen with a knife. On hearing Jagu's alarm, his son Ramdas and three others, namely, Chama, Mohan and Paltu arrived at the spot and saw the stabbing They attempted to seize the driver but the latter ran amuck and stabbed Chama and Mohan. Ramdas then came to their rescue and dealt a lathi blow on the head of the driver who on receipt of the blow ran away towards the south. Mr. G. K. Chakravarty, Assistant Manager, Silua Tea Estate hastened to the spot on hearing row and sent the injured persons to the garden hospital for treatment. Thereafter he by a special messenger sent a letter, briefly stating therein particulars of the incident, to Mr. A. B. Fricker, Manager of the Tea Estate, then away in Shamsher nagar, who again forwarded it to the Officer‑in‑charge of the Kulaora Police Station. On the same night at the request of the Assistant Manager the Police Officer‑in‑charge of the Border Out‑Post accompanied by five Constables came to the spot and took charge of the Bus. On the following morning Osman Gani, a Sub‑Inspector of Police attached to Kulaora Police Station came to the garden and finding the condition of the deceased alarming, recorded his dying declaration. Soon after the recording the decease expired and his dead body was sent to Moulvi Bazar for post‑mortem examination. Along with the dead body three injured persons also were sent to Moulvi Bazar for treatment. This was followed by investigation and submission of charge‑sheet. In the course of investigation, two bundles of Harshwakumari Biris of India made were seized by the Investigating Officer.
The appellant pleaded not guilty to the charges. His defence was that there was fight in the garden Bazar and in the course thereof the deceased and others might have received injuries. His further defence was that there was no occurrence near the gate of the garden as alleged by the prosecution.
The learned Additional Assistant Sessions judge after a review of the materials furnished by the prosecution con victed and sentenced the appellant as stated above.
The appellant has been represented by Mr. T. Talukdar, Counsel while the Crown has been represented by Mr. Salahuddin Ahmed, the Deputy Legal Remembrancer.
The main point urged by Mr. Talukdar is that the trial judge was not justified in convicting the appellant on the First Information Report, dying declaration and result of the test identification parade.
The First Information Report is not a substantive evidence and the learned Assistant Sessions judge appears to be quite sensible to its intrinsic worth. He dealt with the report but he did not attach slightest importance to it for any purpose. At the test identification parade some of the coolee witnesses identified the appellant to be the driver of the Bus No. 554 and assailant of the deceased Jagu, Chamu and Mohan but the driver being known to the coolee witnesses by face from before the date of occurrence, the judge refused to act on such identification. This refusal on the part of the judge to base the decision of the case on the result of the test identification parade not having prejudiced the appellant in the least, Mr. Talukdar cannot have grievance on this score. The judge appears to have grounded his finding on the dying declaration, Exh. C and oral testimonies of 7 witnesses, namely, Ramdas P. W. 1, son of the deceased Jagu, Mohan Goala P. W. 3 Chama Kumar P. W. 4, Paltu P. W. 5, G. K. Chakravarty P. W. 6 Assistant Manager. Monindra Chandra Sen P. W. 8, garden Doctor and Osman Gani P. W. 15, the Investigating Officer but the foundation of his finding as will be presently shown is too frail to wipe away one's doubt regarding the complicity of the appellant in the crime complained of. Needless to mention, the credibility and value of a dying declaration vary with the circumstances of each particular case and the nature of the record made. Here in the present case, as appears from the record, the dying declaration was recorded by the Investigating Officer Osman Gani P. W. 15, in presence of the Assistant Manager, G. K. Chakravarty and garden Doctor Manindra Chandra Sen in the morning following the night of occurrence. The Assistant Manager did not say anything material except that the declaration was recorded by the Investigating Officer and that a few minutes after the recording Jagu expired. The Investigating Officer says that he recorded the dying declara tion of Jagu in the garden hospital, that it took him about 15/20 minutes to write it, and that Jagu died " within about 5/7 minutes" of the recording. The Doctor says that Jagu died in semi‑conscious state and that he was in that state for 15/20 minutes before his death. What, therefore, follows is that the declaration was recorded at a time when the effects of the wounds deadened all feelings and confused the deceased's intellectual power. This is not the solitary blemish the declaration has got but we get reference of one more, almost equally fatal to the prosecution, in the evidence of the Investigating Officer. This witnesses has not only given us the time required in recording the declaration but also gone a step further and said that as the Bengali of the deceased was not correct, he improved the language retaining full sense. This method of recording has been seriously taken exception to by Mr. Talukdar and to our mind rightly. It was not the function of the recorder to record merely his interpretation of the expression used by the deceased but he should have recorded the actual words uttered, leaving the interpretation to the Court. The appellant happens to be brother of Montaz Ali Choudhury of jury and in the dying declaration he is described as Jurir Montaz Ali Choudhurir Bhai. Mr. Talukdar seeks to maintain that the words "Jurir Montaz Ali Choudhurir Bhai" are subsequent interpolations. It is true that some of the letters of those words have the touch of overwriting but it cannot be said with absolute certainty if the words objected to are subsequent interpola tions. The very act of overwriting, however, cannot be viewed with favour. If the dying declaration goes, there remain only the oral testimonies of Ramdas P. W. 1, Mohan Goala P. W. 3, Chama Kumar P. W. 4 and Paltu Kumar P, W. 5. These four witnesses claim to have seen the appellant dealing belows to the deceased with a knife but it is remarkable to note that Paltu was not even called upon to attend the test identification parade to find out the assailant. Mohan any Chama were there and they identified the drive as their assailant but they did not identify him to be the assailant of the deceased. This is not all. An examination of the record further discloses that Chama did not state either to the Investigating Officer or to the Committing Magistrate that he saw the appellant stabbing the deceased. Paltu says that he saw the stabbings from a distance of 70 or 80 cubits and further adds that at the time the headlight and other lights of the Bus were off. It passes our com prehension how Paltu in the absence of any such lights could recognise the driver from a distance of about 80 cubits Specially when at the time of the assaults the assailant, accord ing to prosecution, could not but he facing towards the Bus. The same comment applies to the evidence of P. W. 3 Mohan Goala. Mohan deposes to the effect that on the 9th Jaistha at about 8 p. m. he was playing cards with Paltu in the latter's house when he heard a row near the gate, that he at once stopped the game and ran towards the gate and from a distance of about 4 cubits saw the driver stabbing Jagu with a knife. Paltu's house being about 600 cubits from the place of occurrence we are not prepared to believe that he could reach the spot with the arrival of the Bus. If the evidence of Paltu, Chamu and Mohan be left out, then there remains only the evidence of P. W. 1 Ramdas, son of the deceased, but it will be unsafe to uphold the conviction of the appellant under section 304, Part II solely on his evidence for two reasons firstly for the reason that at the garden hospital the deceased in presence of Ramdas (P. W. 1) pointed out the appellant to the Investigating Officer as the person who assaulted him and secondly for the reason that Ramdas's statement conflicts with the prosecution version at the trial. The case sought to be made out at the trial is that when the deceased was getting down from the Bus he was given two blows, one on his shoulder, and, the other on his abdomen, but P. W. 1, however, gives a different tale, the tale given by him being that the blows were given after his father had got down from the Bus. Yet there is another circumstance. Ramdas's house is about 200 cubits off to the east of the Bazar which again is about 700 cubits from the gate. The Bus stopped about 200 cubits south of the gate. What, therefore, follows is that Ramdas's house will be not less than 600 cubits from the place where the Bus stopped. P. W. 1, having started from his house after the Bus had been set to motion, could not be expected to arrive at the place of occurrence with the arrival of the Bus. The prosecution's positive case is that as soon as the Bus stopped the deceased was stabbed. If that is so, it was physically impossible for Ramdas to see the assault on his father. This again fits in with the evidence of P. W. Mohan who says that on his arrival at the spot he found only Jagu there. This not only dislodges Ramdas but also Paltu and Chama from the category of eye‑witnesses. The driver had an injury on the head and P. W. Ramdas claims that this injury was caused by him with a lathi near the Bus. The learned Deputy Legal Remembrancer contends that the scar on the head clearly signifies that the driver was the person who had fight with the garden people. There is no doubt that the driver was involved in the incidents which took place on the night of occurrence but the point to be looked into in connection with the matter under review is whether the injury on the head was caused by Ramdas near the Bus or at the garden Bazar where the fight commenced.
There is no reliable proof that the injury was caused by Ramdas soon after the assaults on his father. The driver was admitted into the garden hospital on the night of occurrence but prosecution does not say by whom and under what circum stances, he was taken to the hospital. It is hardly believ able that the driver of his own accord could venture to approach the Doctor in charge of a hospital belonging to the hostile camp. To us it seems that some time after the occur rence the driver was seized by the garden people and to effect this seizure‑some of them dealt him a blow on the head and thereafter took him to the garden hospital for treatment. Then again the deceased according to prosecution was found lying about 4 or 5 cubits off from the Bus but the Investigat ing officer did not find any blood there. This also gives rise to serious suspicion as to the truth of the prosecution case regarding the place of occurrence. It further transpires in evidence that Custom peon was with the deceased when the latter was searching the Bus for the smuggled articles but the peon is not examined. Besides the deceased, Chamu and Mohan, two other coolies, namely, Sarju and Ram Prosad were also injured. They were material witnesses but they too have been held back. The Bus passengers could have pierced the mist that has hidden the truth but the prosecution for the reasons best known to it did not even put any of them into the witness box. On a consideration of the above facts and circumstances we are clearly of opinion that it will be unsafe to uphold the conviction under section 304, Part II.
Evidence adduced in support of the charge under sections 326 and 324 is equally unsatisfactory and unworthy of credence. The appellant stood charged under section 326 for having voluntarily caused grievous hurt to Chamu with a knife and under section 324 for having voluntarily caused severe hurt to Mohan with the same instrument. Chamu has of course said that he was stabbed by the appellant but there is no corroborative evidence on the point. It will be unsafe to convict the appellant under section 326 upon his sole testimony when he is found to be an untruthful witness. Paltu claims to have seen the appellant stabbing Mohan but he as already pointed out was not a witness at the test identification parade. Not only this ; it further appears that at the trial prosecution attempted to prove that the appellant was the only assailant but an examination of the order‑sheet of the lower Court record shows that besides the appellant two other persons, namely, Aftab and Amir Ali were sent up by Police for trial under sections 326 and 304. This clearly indicates that the prosecution could not be definite as to who actually assaulted those persons. For the reasons stated above we are unable to uphold even the convictions and sentences under sections 326 and 324.
The appeal is accordingly allowed and the convictions and sentences are set aside. It is directed that the appellant be set at liberty at once provided he is not required in any other connection.
ELLIS, C. J.‑I agree.
K. B. A./M. S. Appeal allowed.