Alais Miah @ Ilias Miah Vs. The State [4 LNJ AD (2015) 171]

Case No: Criminal Appeal No. 24 of 2004

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. M. K. Rahman,Mr. Md. Abu Siddique,,

Citation: 4 LNJ AD (2015) 171

Case Year: 2015

Appellant: Alais Miah @ Ilias Miah

Respondent: The State

Subject: Dying Declaration,

Delivery Date: 2010-05-05


APPELLATE DIVISION
(CRIMINAL)
 
Md. Abdul Matin, J
Shah Abu Nayeem Mominur Rahman, J
Md. Muzammel Hossain, J
S.K. Sinha, J


Judgment on
05.05.2010
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Alais Miah @ Ilias Miah
...Accused-Appellant
Versus
The State
...Respondent
 
Evidence Act (I of 1872)
Section 32(1)
The statement of the relevant facts made by a person who is dead, or incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts when the statement is made 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, in cases in which the cause of that person’s death comes into question and such statements are relevant whether the person who made the statements was or was not under expectation of death. . . .(12)

Evidence Act (I of 1872)
Section 32(1)
When the dying declaration is true and genuine the court can safely rely upon the same as it provides good basis for conviction. But as there always remains the possibility of misusing the provisions relating to dying declaration, court always scrutinizes it meticulously and until it seems to the court that the dying declaration is trustworthy, declines to solely rely upon it to award a conviction to the accused persons . . . . (13)

Evidence Act (I of 1872)
Section 32(1)
A dying declaration to be admissible under section 32 (1) of the Evidence Act, 1872 is not necessarily to be recorded in accordance with the provisions contained in chapter XXV of the Code of Criminal Procedure. Statements in section 32 of the Evidence Act include both oral or written statements which means a dying declaration may not necessarily be only in writing. A dying declaration is evidence if it is free from suspicion and believed to be true and it may be sufficient for conviction. If dying declaration is found to be genuine and true it can by itself form a material basis for conviction. . . . (14)

Evidence Act (I of 1872)
Section 32(1)
While considering dying declaration the court is required to see whether the victim had the physical capability of making such a declaration whether  witnesses who had heard the deceased making such statement heard it correctly. Whether they reproduced names of assailants correctly and whether the maker of the declaration had an opportunity to recognize the assailants. Value of dying declaration depends on the facts and circumstances of the case in which it was made.         . . . (15)

Code of Criminal Procedure (V of 1898)
Section 161
Not only statement under section 161 of Cr. P.C. but also complaint recorded by a police officer can be treated as dying declaration in a fit case. There is no bar to accord the status of dying declaration to a statement recorded under section 161 of the Code of Criminal procedure, 1898 during investigation, and admit it in evidence, if other conditions as set out by the relevant sections is fulfilled.      . . . (21)

Lutfun Nahar Begum Vs. The State, 17 DLR (AD) 29; Shamsur Rahman Vs. State, 42 DLR (AD) 200; PLD 1967 Pesh. 274; Subhan Khan Vs. State, PLD 1960 Lah. 1; Ramprasad Vs. State of Maharashtra, 1999 (5) SCC 30; State of U .P Vs. Veer Singh And Ors, 2004 AIR SC (4) 4614; State Vs. Akkel Ali and others, 5 BLC 4. 39; Munnawar and others. Vs. State of Uttar Pradesh and others, (2010) 5 SCC 451; Paras Yadav and others Vs. State of Bihar, (1999) 2 SCC 126; Shahidullah Khan and others Vs. The State, 12 DLR 537 and Ranbir and others Vs. State of Punjab AIR 1973SC 1409 ref.
 
For the Appellant : Mr. Md. Abu Siddique, Advocate-On-Record.
For Respondent   : Mr. M. K. Rahman Additional Attorney General.

Criminal Appeal No. 24 of  2004
 
JUDGMENT
Md. Muzammel Hossain, J:

This appeal by leave at the instance of the accused-appellant is directed against the judgment and order of conviction and sentence dated 11.12.2002 passed by the High Court Division in Jail Appeal No.1307 (Sunamgonj) Dismissing the appeal and affirming the judgment and order of conviction and sentence dated 22.02.2001 passed by the learned Additional Sessions Judge, Sunamgonj in Sessions Case No.32 of 1993 arising out of G.R. Case No.109 of 1990 originating from Jagannatpur Police Station Case No.14 dated 28.12.1990 convicting the accused appellant under Sections 302 and 34 of the penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Tk.5,000/- in default to suffer rigorous imprisonment for six months more.

The Prosecution case, in brief, is that the informant Serajul Hoque lodged an ejahar with Jagannathpur Police Station alleging, interalia, that on 24.12.1990 at about 3:00 p.m. while deceased Moulana Fazlul Haque accompanied by Abdul Quddus reached at the eastern bank of the Kubashpur river on his way home, the accused persons, namely, Alais Miah alias Ilias Miah, Khurshed, Sayed Hossain and others out of previous enmity and grudge being armed with dao and lathi suddenly attacked him. Accused Alais Miah alias Ilias Miah dealt a dao blow to the right side of Moulana Fazlul Haque’s head causing serious bleeding injury and accused Hassan Ali and Waeres Ali separately dealt dao blows on the middle of his head causing serious injury. Receiving these fetal injuries the deceased fell on the ground and then accused Sayed Ali assaulted him with lathi indiscriminately in different parts of his body causing serious injury. At this grisly attack witness Abdul Quddus raised alarm and hearing hue and cry other witnesses came to the place of occurrence and saw the incident. The victim Moulana Fazlul Haque was initially taken to Osmani Medical Collage Hospital, Sylhet. Thereafter Medical certificate was obtained and first Information Report was lodged. This gave rise to Jagannathpur Hospital wherefrom he was transferred to Osmani Medical College Hospital, Sylhet. Thereafter medical certificate was obtained and First Information Report was lodged. This gave rise to Jagannatpur Police Station Case No.14 dated 28.12.1990 under section 143, 324, 326, 323, 307 and 34 of the Penal Coade,1860 Subsequently, victim Moulana Fazlul Haque died in the Hospital on 05.01.1991 at about 8:40 a.m.

The police after completion of investig-ation submitted charge sheet against the accused persons including the appellant under sections 302,114 and 34 of the Penal Code. Charge was framed against the accused persons including the accused-appellant under sections 302 and 34 of the Penal Code. The prosecution examined on behalf of the accused Wares Ali.

The learned Additional Sessions Judge, Sunamgonj after holding trial by the judgment and order dated 22.02.2001 convicted the accused persons including the accused-appellant under sections 302 and 34 of the penal Code and sentenced each of them to suffer rigorous imprisonment for life and also to pay a fine of TK.5000/- each in default to suffer rigorous imprisonment for six months more.

The accused–appellant being aggrieved by the aforesaid judgment and order date 22.02.2001 passed by the learned Additional Sessions Judge, Sunamgonj preferred Jail Appeal before the High Court Division and a Division Bench of the High Court Division by judgment and order dated 11.12.2002 dismissed the appeal affirming those passed by the learned Additional Sessions Judge, Sunamgonj in Sessions Case No.32 of 1993.

The accused–appellant being aggrieved by the impugned judgment and order of conviction and sentence dated 11.12.2002 passed by the High Court Division preferred the instant appeal with the leave of this Court.

Leave was  granted to consider the submissions that the High Court Division creed in law in considering the statement of the deceased recorded under section 161 of the Code of Criminal Procedure,1898 during investigation as his dying declaration while there was no apprehension of death and the said statement of the deceased was not given in evidence and the  trial Court after considering the materials on record held the same inadmissible in evidence and the statement of the  deceased under section 161 of the Code of Criminal Procedure cannot be legally treated as dying declaration and it has no legal value for all practical purposes. It has been further submitted that the High Court Division erred in upholding the judgment of conviction passed by the trial Court on misreading of evidence and non-considering cross-examination of witnesses and relying upon the testimony of interested, partisan and chance witnesses in absence of any corroboration from independent, natural, disinterested and neighboring witnesses, although it is admitted by the prosecution witnesses that the place of occurrence is surrounded by 10/15 houses. It has also been submitted that the High Court Division deviated from the settled principle of law by not holding that no reliance can be placed on testimony of the witnesses who were examined by the Investigating Officer after lapse of a considerable time.

It appears that four out of 16 prosecution witnesses, namely, PWs 2, 3, 4 and 5 were the eye witnesses who saw the occurrence from a close distance that  the accused appellant Alais Miah alias Ilias Miah dealt dao blow to the head of the victim and other accused persons also inflicted similar blows by sharp cutting weapons and caused injuries on the head of the victim.

The informant Md. Serajulo Haque as PW-1 reproduced the prosecution case as narrated in the First Information Report in has examination in chief. P.W 2-Abu Sayeed deposed that on. 24.12.1990 at about 3:00 P.M. while he was coming behind the victim Fazlul Haque saw that the accused Sayed Ali, Khorshed and Ilias attacked the victim and at the order of Sayed Ali accused khorshed gave a dao blow to the left side of the head of the victim and the accused Ilias also gave a dao blow to the right side of the head of the victim. Hearing alarm raised by the victim other witnesses including Abdur Rahim, Sekander, Sahabuddin Membe, Goffar Member, Shafique rushed to the place of occurrence.p.w.3-Sekander Ali corroborated the evidence of P.W.2 in material particulars stating, that on the date of occurrence while returning to his house he saw that the accused Khorshed and Ilias dealt dao blows to the head of the victim Moulana Fazlul Haque causing serious injuries and he fell to the ground. When they raised alarm other witnesses rushed to the place of occurrence and witnessed rest of the incident.p.w.4.shahabuddin corroborating p.Ws.2 and 3 deposed that on the date of occurrence at about 3:00 p.m. while he was returning home from Jagannathpur and reached near the place of occurrence heard hue and cry of Moulana fazlul haque and then threw him in the mud water of the bank of the river. When P.W.4 along with Goffar, Quddus, Sekander and Abu Sayed brought out the victim Moulana Fazlul hoque from mud water and asked him about the occurrence, he told them that the accused appellant and other co-accused persons had dealt dao blows to his head causing serious injuries.

It appears that cross-examining the prosecution witnesses the defence could not find any discrepancy in their evidence. P.Ws.2 to 5 being the eye witnesses deposed that accused appellant Alias @ Ilias dealt dao blows to the head of the victim causing serious injuries. It also appears that the trial court as well as the High Court Division found that the post –mortem report submitted by Dr. Anwar Hossain, P.W.9 which was marked as Exbt.4 corroborated the evidence of P.Ws.2-4 to the effect that there were wounds on the frontal region of the head of the victim. P.W.11 Dr. Md. Mokbul Hossain later on deposed as p.e.16 stating the seriousness of the injury and the treatment given to him. P.w.15-Dr. Md. Idris Mia and P.W.16-Dr. Md. Mokbul Hossain corroborated the evidence of P.Ws.2-4 in respect of the injuries inflicted on the head of the victim.
From the evidence of the aforesaid eye witnesses who were corroborated by the medical witnesses it is abundantly clear that the accused-appellant Alais Miah @Ilias Miah inflicted blows by sharp cutting weapon, namely, dao to the right side of head of the victim causing serious injury.

From the evidence of the Investigation Officer it appears that during the course of investigation he recorded the statements of the victim Moulana Fazlul Hoque on 31.12.1990 under section 161 of the Code of Criminal Procedure when the victim stated that accused appellant Ilias along with co-accused persons had dealt dao blows causing serious injuries on the frontal region the right side of his head. It also appears from the record that occurrence took place on 24.12.1990 at about 3:00 pm and the victim died in the Osmani Medical Collage Hospital, Sylhet on 05.01.1991 at 8:40 a.m. In the instant case the victim Moulana Fazlul Haque is a very vital witness and he died in the hospital after fighting for his life for about 12 days. Now the pertinent question before this Court is whether the statement made by the deceased Moulana fazlul Hoque under section 161 of the Code is admissible in evidence in view of his death a few days after the occurrence. In other words, whether his statement recorded under section 161 of the Code of Criminal procedure, 1898 by the Investigation Officer can be treated as a dying declaration and be accorded the status of an admissible evidence. The admissibility of the statement of a victim who subsequently dies in consequence of the injuries he receives is governed by section 32(1) of the Evidence Act, 1872. This section provides that the statement of the relevant facts made by a person who is dead, or incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts when the statement is made 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, in cases in which the cause of that person’s death comes into question and such statements are relevant whether the person who made the statements was of was not under expectation of death. Echoing the substance of the section this Division in the case of Lutfun Nahar Begum vs. The State reported in 17 DLR (AD)29 held that the statement of a dead person is a relevant fact under section 32(1) when it is made by that person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.

The maxim “Nemo moriturus praesumitur mentire” is the basis of admitting dying declaration in evidence the meaning of which is “A man will not meet his maker with a lie in his mouth.” It is quite natural that an injured person under the apprehension of death while making oral statement will not forcibly implicate any person even if he is a past enemy. Though hearsay evidence is not admissible in courts on the ground that the person who gives this evidence does not account his experiences but that of another person and as  such the tool of cross examination cannot be applied to verify the truth of the facts stated as hearsay, dying declaration is an exception to this rule It is because, apart from the postulation of  the above maxim, if this evidence is discarded the very purpose of justice will be frustrated in situation when there may not be any other witnesses to the crime other than the victim who subsequently succumbed to his injuries. A dying declaration whether written or oral by the victim has got a special sanctity in the eye of low. It is well settled that when the dying declaration is true and genuine the court can safely rely upon the same as it provides good basis for conviction. But as there always remains the possibility of misusing the provisions relating to dying declaration, court always scrutinizes it meticulously and until it seems to the court that the dying declaration is trustworthy, declines to solely rely upon it to award a conviction to the accused persons. Again sometimes it is very difficult to draw a conclusive line between doubtful and trustworthiness characteristics of a dying declaration. In the case of Shamsur Rahman –Vs- State reported in 42DLR (AD) 200 the Appellate Division held With majority view that alleged dying declaration, the only piece of evidence against the appellant , having not been free from reasonable doubt,  the is entitled to  benefit of doubt and the some cannot be relied upon, while in the same judgment upon same set of facts His Lordship Mr. Justice Latifur Rahman (as he the Was) noted his dissenting view  and held the dying declaration to be genuine.

A dying declaration to be admissible under section 32 (1) of the Evidence Act, 1872 is not necessarily to be recorded in accordance with the provisions contained in chapter XXV of the code of Criminal Procedure. Statements in section 32 of the Evidence Act include both oral or Written statements which means a dying declaration may not necessarily be only in writing. A dying declaration is evidence if it is free from suspicion and believed to be true and it may be sufficient for conviction. If dying declaration is found to be genuine and true it can by itself form a material basis for conviction. The main tests for determining the genuineness of a dying declaration are, as held in PLD 1967 Pesh. 274, (1) whether intrinsically it rings true, (2) whether there is no chance of mistake on the part of the dying man in identifying or naming his assailant ,. And (3) whether it is free form prompting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case.

While considering dying declaration the court is required to see whether the victim had the physical of capability of making such a declaration whether witnesses who had heard the deceased making such statement heard it correctly. Whether they reproduced names of assailants correctly and whether the maker of the declaration had an opportunity to recognize the assailants. Value of dying declaration depends on the facts and circumstances of the case in which it was made. Unlike English law, for admissibility of a statement a person should not necessarily be in the expectation of death when he made the statement.

In the instant case the statement was made by the victim under section 161 of the Code of Criminal Procedure, 1898 to the Investigation Officer and after a few days the victim succumbed to his injuries. In the case of Subhan Khan –Vs- State reported in PLD 1960 Lah. 1 it has been held that the statement of a person surviving serious injuries is not a dying declaration within the meaning of section 32(1) of the Evidence Act. Supreme Court of India in the case of Ramprasad Vs. State of Maharashtra, 1999 (5) SCC 30 held as under:

“We are in full agreement with the contention of the learned counsel that Ext.52 cannot be used as evidence under Section 32 of the Evidence Act though it was recorded as a dying declaration. At the time when PW 1 gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.”

The same Court in the case of State of U .P vs Veer Singh And Ors, 2004 AIR SC (4) 4614, observed,

“It is trite law that when marker of purported dying declaration survives the same is not statement under Section 32 of the Indian Evidence Act, 1872 (for short the Evidence Act’) but is a statement in terms of Section 164 of the Code. It can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction.”                   

But in the case before us the victim made statement in the course of police investigation while he was in a critical and in the apprehension of Imminent death and in fact he had died after 12 days. In the case of state –vs- Akkel Ali and others reported in 5 BLC 4.39 it has been held that merely because the victim died some days after recording the dying declaration will not render the dying declaration inadmissible under section 32 of the Evidence Act. In that case dying declaration was recorded on 22.05.1989 and victim died on 15.06.1989. So, in the instant case there remains no ambiguity that the delayed death to extent of 12 days of the victim did not cast any impurity upon the admissibility of the dying declaration. In Munnawar & ors. V. State of Uttar Pradesh & Ors. (2010) 5 SCC 451, the Supreme Court of India held that a dying declaration can be relied upon if the deceased remained alive for a long period of time after the incident and died after recording of the dying declaration.

The other objection, which was most vehemently submitted by the defence counsel, that the statement of the victim, while there was no apprehension of death, recorded by the investigation officer under section 161 of the code of criminal procedure, 1898 cannot be legally treated as dying declaration and it has no legal value for all practical purposes, To this objection the second part of section 32(1) of the Evidence Act, 1872 and section 162(2) of the Code of Criminal Procedure, 1898  are sufficient to stand as answer. In this context it is pertinent to reproduce section 162(2) of the code which reads as under;
 
“162 (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32,clause (1) of Evidence Act, 1872, or to affect the provisions of section 27 of the Act.”

Section 32(1) of the Evidence Act, 1872 clearly mention that “expectation of death” on part of the declaring person is not mandatory and section 162(2) of the code of Criminal procedure, 1898 says that general rule that statements recorded under section 161 of the code is not admissible in evidence Act, 1872.

Not only statement under section 161 of Cr. P.C. But also complaint recorded by a police officer can be treated as dying declaration in a fit case. In Paras Yadav & Ors. Vs. State of Bihar (1999) 2 SCC 126, the supreme court of India held that a statement of the deceased recorded by a police office in a routine manner as a compliant and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution Witnesses clearly establishes that the deceased was conscious and was in a fit state of heath make the statement. Therefore, there is no bar to accord the status of dying declaration to a statement recorded under section 161 of the code of Criminal procedure, 1898 during investigation, and admit it in evidence, if other conditions as set out by the relevant sections is fulfilled. In the case of Shahidullah Khan and others Vs. The State reported in 12 DLR 537 the High court so held that statement made in the course of police investigation is admissible as dying declaration.

Regarding the objection raised by the learned Counsel of the appellant that no reliance can be placed on testimony of the witnesses who were examined by the Investigating officer after lapse of a Considerable time-it would suffice to say that in the instant case no occasion had arisen to contradict a statement reworded by the Investigation officer with statement given by the witnesses in the Court on oath. The supreme Court of India in the case of Ranbir and Ors. Vs. State of Punjab AIR 1973SC 1409 observed as under:
 
“The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case”

In the instant case the witnesses stood unshaken at the fierce cross examination by the defence which suggests that no unfair practice by the Investigation officer for the purpose of introducing a got up witness to falsely support the prosecution case was adopted, and as such delayed examination of the witnesses by the Investigation officer did not harm the merit of the prosecution case.

In the instant case we have already noticed that p.w.2 Abu Sayeed, P.W.3–Sekander Ali and P.W.4-Shahabuddin deposed that they had witnessed in their own eyes that the accused appellant Alais Miah @ Ilias Miah inflicted dao blow to the right side of the head of the deceased Moulana Fazlul Hoque. The said piece of evidence was corroborated by P.W.11-Dr. Anwar Hossain who held the post-mortem examination of the dead body of the victim, P.W. 11-Dr. Md. Makbul Hossain who deposed that when the victim had been brought to Osmani Medical College Hospital, Sylhet he had found injury on the right side of the head caused by sharp cutting weapon. So the statement of the victim during the course of investigation in respect of his injury to the effect that that was caused by accused appellant Alais Miah@ Ilias Miah was corroborated by P.W.s 2,3,4 and 5 and the nature of the injury was sufficiently corroborated by the post-mortem report and by the evidence of Dr. Md. Mokbul Hossain (examined as P.W. 11 and P.W.16) Who had examined the victim Immediately after he had been brought to the Osmani Medical College Hospital, Sylhet. In instant case the prosecution examined credible witnesses. Four of them were eye witnesses and rest of them were the circumstantial witnesses who corroborated the eyewitnesses in material particulars. We have also perused the documents namely, post –mortem report and medical examination report. In a criminal case conviction can be based even on the testimony of a sole witness if it is credible. The defencc by cross-examining the prosecution witnesses not touch the credibility of those PW.s. The trial court and the High Court Division found that the PWs were credible. Both the trial Court and the High Court Division found concurrently found that the prosecution with the evidence of P.W.s 2, 3, 4 and 5 with was corroborated by the post-mortem report and other circumstantial evidence proved the charge leveled against the accused-appellant alais Miah @ Ilias Miah beyond reasonable doubt.

Having considered the submissions of the learned advocate for the accused-appellant and also the additional attorney General for the respondent and the evidence of record, we are of the view that the prosecution has successfully proved the guilt of the accused-appellant Alais Miah @ Ilias Miah beyond reasonabla doubt. The judgment and order of the High Court Division having been passed of proper assessment and consideration of material evidence of record, we do not find any illegality or infirmity in the impugned judgment and order and ad such they do not require any interference by this Court is no merit in the appeal.

In the result, the appeal is dismissed.

Ed.