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Criminal Appeal No. 438 and Death Reference No. 11 of 1968, decided on 19th December 1968.
S. 302 read with Evidence Act (I of 1872), S. 32‑Murder‑Dying declaration‑Injury found on throat of deceased lying obliquely from above middle of right clavicle up to lobe of left ear including trachea measuring 6" x 2" x 3"‑‑Possibility that deceased could speak in whisper if not in normal voice.
Modi's Medical Jurisprudence, 9th Edition, page 257 ref.
S. 32‑Dying declaration Answers to some questions given by signs and to some questions through lips‑Dying declaration, held, admissible.
S. 302 read with Evidence Act (I of 1872), S. 32‑Murder‑Dying declaration‑Conviction can be based solely on evidence of dying declaration' which stands on same footing as evidence of any witness‑Great care, however, to be taken in assessing value of dying declaration which is not .subjected to cross‑examination.
9 D L R 1 ; Abdul Raziq v. The State P L D 1964 Pesh. 67; 12 D L R 30 and Abdul Raziq v. The State P L D 1965 S C 151 ref..
A. W. Mallik for the Condemned‑Prisoner.
Daliluddin Ahmad and Md. Behter Ali for the State.
This reference under section 374 of the Code of Criminal Procedure is by the Sessions Judge, Jessore, for confirmation of sentence of death passed by him on Chakman Molla under section 302 of the Pakistan Penal Code. An appeal has also been preferred by the condemned man against his con viction and sentence. Both the Reference and the appeal have been heard together and are being disposed of by this Judgment. The prosecution case briefly is as follows: Bashir Munshi aged 38 to 40 years, a boatman by profession, the ill‑fated victim of this case, left his home in the District of Faridpur about 8 months before the date of the incident and came to live in the village of Sarusona under Salikha Police Station in the District of Jessore. His mother‑in‑law, wife and children also came with him. Tola Khatun of that village gave them shelter and they, lived in a separate but of hers for about 8 months. The convict Chakman Molla, a very close neighbour of Tola Bibi, used to come to this but and sing songs to Chandravan, wife of Bashir and he developed an intimacy with her. Abul Hossain a grown up son of Tola Bibi did not like this and warned Chakman not to come to their house and sing songs in an objectionable manner. At this Chakman took Bashir, his wife, mother‑in‑law and the children to his own house to live there. Five days after this on the night following 28th Ashar 1374, B. S. corresponding to 14th July 1967, at about 1 a.m. Bashir was attacked and his throat was cut while he was sleeping on the verandah of the north bhiti but of Chakman Molla.
Bashir on receiving the injury ran to the house of Tola Bibi and awoke Quddus by pushing him and on his call his mother also woke up. They were both sleeping on the verandah of their hut. Tola Bibi lighted a lamp and found Bashir sitting with his hands at his throat and blood oozing out through his hands from the cut injury at the throat. On Tola Bibi's alarm several neighbours assembled including some of the prosecution witnesses. Bashir made a statement implicating the accused as his assailant and his wife Chandravan and Mother‑in‑law Samartaban as having been in collusion with Chakman.
Bashir was taken to the Police Station in the boat of Tola Bibi's son‑in‑law Nuruddin (P. W. 15) the distance being about two and half miles. Chandravan wife of Basir was also made to accompany them. Tola Bibi and Esharat, one of the neighbours also accompanied the injured to the Police Station. There Tola Bibi lodged a First Information Report at 4 a.m.
Bashir was then sent to the Thana Dispensary. The Medical officer, P. W. 8 Dr. Md. Mohsin examined the injured. He found one transverse cut mark running obliquely in front of the throat from just above the middle of the right clavicle up to the lobe of the left ear, including the trachea measuring 6" x 3" skin separat ed". He also found another "cut injury on the upper part of right chest measuring 2" x 4" x skin deep".
As the doctor found the patient in precarious condition he recorded his dying declaration (Exh. 3). Besides A. S. I. of Police, Ahmad Hossain, who had recorded the First Information Report, Tola Bibi, Chandravan, wife of the injured and Esharat (P. W. 5) were present at the time of recording of the dying declaration. The dying man could not give answer to some of the questions by utterance but replied to them by signs. After recording the dying declaration the doctor referred the patient to Jessore Sadar Hospital for treatment and he expired there. Thereafter post‑mortem examination on the dead body was held by Dr. S. Huq (P. W. 7).
The Assistant Sub‑Inspector of Police (P. W. 17) had visited the place of occurrence on that very day (14‑7‑67) at 8 a.m. He seized alamats including blood stained articles from the southern verandah of Chakman's but and also from the verandah of Tola Bibi's hot. He also prepared a sketch map. He "did not find the accused at home" and so could not arrest him.
On the following day, Syedur Rahman (P. W. 18) the Officer in‑Charge of the Police Station took up the investigation on his return from Mofassil. He visited the locality, held investigation and submitted charge‑sheet on 1‑9‑67 against Chakman under section 302 and against Chandravan and Samartavan under section 302/109 of the Pakistan Penal Code. The accused Chakman had in the meantime surrendered in Court on 2‑8‑67.
After the usual preliminary enquiry by a Magistrate of the First Class, all the three accused were committed to the Court of Sessions under the aforesaid sections.
The accused persons pleaded not guilty to the charge. Eighteen witnesses were examined for the prosecution and the accused did not examine any witness.
The motive of the crime, according to the prosecution was to get rid of Bashir Munshi before he could, on the following morning take away his wife Chandravan for whom Chakman is said to have developed on infatuation.
From the suggestions given to P. W. 1 Tola Bibi, it appears that the defence of the accused was that Tola Bibi's son Abul Hossain had a fascination for Chandravan and he used to vex her and because of this she along with her husband and others went to live in Chakman's Bari and further that it was Abul Hossain who had murdered Bashir and in order to save him, Tola Bibi went to the Thana personally and lodged a false Eahar' against the accused.
The learned Sessions Judge on consideration of the evidence on record found that the occurrence took place on the verandah of Chakman's house. He accepted the evidence of P. W. 2 Chhutu Bibi that she saw Chakman running away when she carne out of her house on hearing shouts from Chakman's house and also accepted the evidence of P. W. 1 Tola Bibi, P. W. 2 Chutu Bibi, P. W. 4 Abul Hossain, P. W. 5 Quddus, P. W. 6 Esharat Molla, P. W. 12 Arab Ali and P. W. 15 Nurul alias Nuruddin that Bashir stated to them at Tola Bibi's house that Chakman had inflicted the injury on his throat and he could recognise him by the glow of the hurricane lantern inside the but which was coming through the chinks of the split Bamboo wall of the hot. The learned Sessions Judge also relied on the dying declaration recorded by Mr. Mohsin P. W. 8 (Exh. 3) to the effect that Chakman had caused the injury on his throat, and he recognised him by light. Accordingly, accepting the unanimous opinion of the four assessors he found Chakman guilty under section 302, P. P. C. He acquitted the other two accused persons on the finding that there was no evidence against them as to their complicity in the offence.
Mr. A. W. Mallik who bas appeared for the convict appellant Chakman has contended in the first place that the learned Sessions Judge was wrong in holding that the incident took place in the house of Chakman. He has argued that though some blood‑stained materials (namely, blood stained Katha Exh. VI, blood‑stained earth Exh. VII, blood‑stained pillow cover Exh. VIII) were seized from the verandah of Chakman's but in the absence of a positive report on chemical examination of the blood‑stains, it cannot be held that these stains were of human blood. It is true that the articles were not sent for chemical examination. But the evidence of P. Ws. 1, 2, 4, 5, 6, 12 and 15 clearly establishes that 5 days before the night of incident Bashir had gone to live in the house of Chakman with his family and the statement of Bashir to the aforesaid witnesses further established that he was sleeping on the verandah of Chakman's but when the injury on his throat was inflicted. I find no reason to disbelieve the above evidence which clearly proves that the incident took place on Chakman's verandah and Bashir ran to the verandah of western bhiti but of Tola Bibi where she and her younger son Quddus were sleeping and awoke them. It is true that the A. S. I. P. W. 17 has stated that he seized a blood‑stained (late‑leaf mat, blood‑stained genji of Tola Bibi's son Quddus, blood‑stained earth (Exhs. II, III and IV) from the house of Tola Bibi and this has been corroborated by P. W. 12 Arab Ali Molla, a witness to the seizure list. But, the presence of blood stains on the above‑mentioned articles is explained by the evidence that Bashir went to the verandah of Tola Bibi's but after his throat was cut and there was profuse bleeding from his throat. There is evidence that he set on Quddus's mat. He must have been supported by Quddus and thereby his genji became stained with blood and blood also fell on the mat and ground of the verandah on which Quddus was sleeping. The Assistant Sub‑Inspector of Police (P. W. 17) also seized certain blood‑stained tree‑leaves, and jute stick (Exhs. X to XII) and from the evidence and surrounding circumstances it appears that as Bashir was coming from Chakman's but to Tola Bibi's but which is about 60 yards from the but of Chakman, drops of blood fell on the leaves etc. Apart from the evidence of the witnesses mentioned above, as already stated, it was also suggested by the learned defence lawyer to Tola Bibi (P. W. 1), that Bashir went to live in the house of accused Chakman as his wife used to be vexed by Abul Hossain. Further P. W. 17 has stated that he arrested accused Samartaban from the house of appellant Chakman. In view of all this, there can be no reason to disbelieve the statement of Bashir as given by the P. Ws. that his throat was cut on the verandah of Chakman's hut.
Mr. Mallik has also argued that in view of the grievous cut injury on the throat it would not be possible for Bashir to run from Chakman's house to Tola Bibi's house. Having regard to the evidence regarding the injury and the oral evidence of the prosecution witnesses, I am unable to hold that this was improb able. In this connection it may be stated that several witnesses have deposed that Bashir's wife Chandravan and his mother were sent for from the house of Tola Bibi but they did not come to Tola Bibi's house to see the injured Bashir and that Chandravan afterwards came when Bashir had gone to the boat from starting for the Thana and that she was dragged into the boat and Bashir struck her some blows with his fist. This shows that Bashir was still left with some strength. I, therefore, find no substance in the above contention.
Mr. Mallik has next contended that in view of the cut injury on the throat of Bashir it was impossible that he should be in a position to speak and tell anything as to how he received his injury and whether he recognised any one. I have already referred to the nature of the injury as found by Dr. Mohsin (P. W. 8) who recorded his dying declaration at the Salikha Charitable Dispensary. The description of the injury on the throat given by Dr. S. Haque, Assistant Civil Surgeon, Jessore Sadar Hospital who held the post‑mortem examination is as follows :‑
"One transverse cut‑throat wound 6" x 2" x 3" with division of skin, muscle, vessels, nerves, trachea on the middle and slightly on the left side of the neck.
On dissection anterior wall of the oesophagus was found injured."
There was no cross‑examination of any of the two doctors, P. Ws. 7 and 8, as to whether with such an injury on the throat the injured would be in a position to speak. Mr. Mallik has, however, referred to the following passage in Modi's Jurispru dence 9th Ed., p. 257.
"In the case of a wound of the larynx, speech is possible, if the wound is above the vocal cord, even if it is gaping. But in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible. In such a case one may be able to speak in a whisper, if the wound is not gaping sufficiently to allow air to pass into the mouth. Prof. Harvey Littlejohn describes the case of woman aged 45, who, after making a transverse incision, 2 long, in the front of the neck cutting the trachea completely through 2" below the vocal cords, was found sensible, and said that she had torn the tumour out of her neck because it was choking her, and that she wanted to die. On the bed was a small tumour which was encapsuled and consisted of the right lobe of the thyroid gland, hypertrophied, and of fibrous consistence. She was removed to hospital, but was dead on arrival. At the post‑mortem examination the upper and of the divided trachea projected from the wound, along with the oesophagus. The protruding oesophagus measured 6 ".
In the present case we find from the evidence of Dr. Mohsin (P. W. 8) that the injury on the throat lay obliquely from just above the middle of the right clavicle up to the lobe of the left car including the trachea measuring 6" x 2" x 3" skin separated. The uniform evidence of the seven witnesses on this point, namely, P. Ws. 1, 2, 4, 5, 6, 12 and 15 is that Bashir did make a statement to them. There was no cross‑examination on the point as to how he spoke, whether in a whisper or in a normal voice. It is highly probable that he spoke in a whisper. There is no opinion of the doctors before us to show that even speaking in a whisper would have been impossible, and the passage from Modi quoted above does not exclude such possibility. In the circumstances, there is no reason to disbelieve the witnesses mentioned above. Even before Dr. Mohsin at the time of record ing of his statement, though many of the answers were given by signs, he was in a position to answer some of the questions by moving the lips. In the circumstances, I do not find any reason to disbelieve the evidence that Bashir did make a statement to them to the effect that the appellant had cut his throat and he had recognised him by means of glow of the light of hurricane lantern burning inside the but and coming through the chinks of the split bamboo wall.
Mr. Mallik has next contended that the evidence of the witnesses mentioned above that Bashir stated that he recognised the appellant by means of light coming through the chinks of the split bamboo wall should not be accepted as true. On this point he has firstly contended that none of the witnesses stated in the committing Court that Bashir stated that he recognised the assailant by means of light coming through the chinks in the split bamboo wall. Now, this omission may be explained away by saying that this was not mentioned by the witnesses in the com mitting Court as no direct question was put to the witness on the point.
Mr. Mallik has next contended that the learned Sessions Judge erred in accepting the evidence of P. W. Chhutu Bibi that she saw Chakman running away. Mr. Mallik has contended that the story of P. W. 2 Chhutu Bibi that she saw the appellant Chakman running away is on the face of it unworthy of credence. I find that this contention is sound. She has stated her house is south of Chakman's house about 20 cubits away, and one Maju Bibi's house lies to the east of her house and that on hearing shout from Chakman's house after mid‑night she first came to the house of Maju Bibi and then they went to the Bari of Chakman, and on the way to Chakman's house, they found Chakman running away towards the west of his Bari. She has stated that she had a lighted Kupi lamp in her hand. In her cross‑examination she has stated that Chakman was running at a considerable distance from us and she did not call him nor did she inquire the reason for his running. It would appear from the judgment of learned Sessions Judge that he accepted the story of recognition of Chakman by Chhutu Bibi. He has observed "P. Ws. Chhutu Bibi and Maju Bibi found him running away at such an hour and Chutu Bibi had a Kupi lamp in her hand." The learned Sessions Judge clearly failed to appraise the evidence of Chutu Bibi carefully. Even, if the story that she saw a person running away is taken as true which appears to be extremely doubtful, it is improbable that she would be able to recognise a person who was running "at a considerable distance" from them. There is no evidence that it was a moon‑lit night. The source of recogni tion is stated to be light of the Kupi lamp in Chhutu Bibi's hand. The light of a Kupi lamp in her hand would not reach a man who was running at a "considerable distance" to make recognition possible. Further, I have already mentioned that P. W. 2 Chhutu Bibi according to her evidence came out on hearing shout from Chakman's hut, but no other witness speaks of any such shout from Chakman's house; and having regard to the nature of Bashir's injury on the throat it cannot be believed that he would be able to shout P. W. 3 Maju Bibi was simply tendered for cross‑examination which was declined and therefore, the learned Sessions Judge was not right in saying that P. Ws. Chhutu Bibi and Maju Bibi found Chakman running away. I am unable to place any reliance on the evidence of Chhutu Bibi that she saw the appellant running away and it must be discarded altogether as any evidence of recognition of Chakman.
There remains, therefore, only the statements of Bashir made to the witnesses at the house of Tola Bibi and to the doctor who recorded his dying declaration. Mr. Mallik has contended that there is no reliable evidence as to the actual existence of any chinks in the split bamboo wall sufficiently large to admit any glow of light to pass through them into the verandah outside, and the statement of P. W. 18, the Investigating Officer, the only piece of evidence on this point, is unworthy of credit. Now, it is true that except the statement of P. W. 18, the Investigating Officer, there is not direct evidence as to the presence of openings in the bamboo fencing or wall in question. In his cross examination he states as follows :‑
"The home (north bhiti) I noticed had a fencing of jute stick with a gap 3" to 4". 1 made a note of this in my diary. My diary shows that it had split bamboo walls. The mention about the gap of 3" x 4" is made in between 2 lines. It was not subsequently interpolated. I recorded this diary on 15‑7‑67. It is not recorded in my index as regards the structure of the dwelling but of accused Chakman."
The last sentence appears to be in answer to a question whether it is recorded in the index of the sketch map that the but had a fencing with gaps and the answer was in the negative.
Mr. Mallik has contended that the mention of the presence of gap 3" x 4" in the wall is obviously an interpolation, as it is inserted in between two lines. We have looked into the diary for ourselves and we are unable to hold that this contention is without any basis. The result, therefore, is that apart from the implication in the reported statement of Bashir, there is no reliable evidence to show that there were chinks in the bamboo wall large enough for light of a hurricane lantern burning within the but to pass outside and enable recognition of the assailant.
Mr. Mallik has also argued that the dying declaration is inadmissible in evidence and that in any case it is of little evidentiary value in the form it has been recorded. The dying declaration recorded by P. W. 8 is as follows :‑
Dying Declaration
"Q. No. 1.‑What is your name
Ans.‑Moving the lips he replied slowly‑Bashir Munshi.
Q. No. 2.‑What is the name of your father
Ans.‑Moving the lips he replied slowly‑Bani Munshi.
Q. No. 3.‑Where is your house located
Ans.‑He replied in the same manner‑Kavirajpur.
Q. No. 4.‑Who has beaten you
Ans.‑‑‑He replied in the same manner‑‑Chakman.
Q. No. S.‑Where is his house located
Ans.‑He replied in the same manner‑Sarsuna.
Q. No. 6.‑Who were in his company
Ans.‑He pointed out his wife by indication.
Q. No. 7.‑What is your wife's name
Ans.‑He replied in the same manner‑Chendravan.
Q. No. 8.‑What had you been doing at the time of inflicting "kope"
Ans.‑He replied in the same manner‑I was sleeping.
Q. No. 9.‑Who were in the company of Chakman
Ans.‑He replied in the same manner‑My mother‑in‑law also was with him.
Q. No. 10.‑Was there an enmity between Chakman and you
Ans.‑He pointed out his wife and male organ of self by indication.
Q. No. 11.‑Was there an illicit connection between Chakman and your wife
Ans.‑Nodding his head he replied in affirmative.
O. No. 12.‑For how long such an illicit connection between Chakman and your wife was going on
Ans.‑He indicated the period by showing the five fingers of his hand.
Q. No. 13.‑Was there a dispute between you and your mother‑in‑law
Ans.‑He pointed out his wife by indication.
Q. No. 14.‑‑How long ago had you come to this locality
Ans.‑Moving the lips he replied by indication‑In Kartick' last.
Q. No. 15.‑In whose house had you taken shelter after coming here
Ans.‑He showed Tola Khatua, wife of Makbul Sheikh.
Q. No. 16.‑At what time had you been inflicted 'Kope'
Ans.‑He showed one finger of his hand.
Q. No. 17.‑Had there been any other person else these three
Ans.‑Nodding his head he replied in the negative.
Q. No. 18.‑How could you recognise Chakman
Ans.‑He replied by indication at the time of inflicting the Kope'. I suddenly opened my eyes and saw him.
Q. No. 19‑Was there a light then
Ans.‑He replied in the affirmative by indication.
Q. No. 20.‑What did you do on receipt of the Kope'
Ans.‑He indicated act of fleeing running and pointed out Tola Khatun by indicating with finger.
Q. No. 21.‑With what weapon had you been inflicted Kope" Ans.‑Moving his lips he muttered with Chendao'."
It has been contended by Mr. Mallik that the dying declaration is not admissible in evidence inasmuch as the statements were made in answer to leading questions and further that answer to questions by signs do not amount to "verbal statement" within the meaning of section 32 of the Evidence Act. Now as regards the first point it would appear from the dying declaration that most of the questions were not of a leading nature. Mr. Malik has contended that the question No. 19 "was there a light then " was a leading question to which he replied in the affirmative by "indication". This would appear to be a leading question, but even in the case of a leading question the reply does not become inadmissible though such a statement may be of little value.
As regards Mr. Mallik's contention that answers by signs is not a statement under section 32 of the Evidence Act, this cannot be accepted as correct. In the case of Chandra Sekera alias Alisandari v. The King (1937 A C 220) it was held by the judicial Committee that the evidence as to signs made in answer to question put to the deceased was admissible, but that statements of witnesses as to what interpretations they put upon the signs were not admissible. That was a case from Ceylon. Section 32 of the Ceylon Evidence Ordinance No. 14 of 1895 is identical with section 32 of our Evidence Act. In that case the throat of a woman was cut at about 4 p.m. and the throat wound rendered her unable to speak but she was fully conscious and able to understand what was said to her and to make signs and nod her head though slightly. After receiving the injury on the throat she ran a distance of 150 yards to another house. She was bandaged and propped up against the wall with cushions. She was questioned by some of the witnesses and the result of it was as follows :‑
"Asked who cut her neck the deceased indicated by signs the height of the person and later pointed to Mr. Jayawardene and also made signs as of goading bull. The accused had worked for Mr. Jayarwardene as a carter. She also pointed to a con stable and then patted or slaped her check two or three time s. The accused had sometime previously assaulted a constable by slapping his face and this was a matter of common knowledge. Probably at this stage though the witnesses were not entirely in agreement as to the order of events‑Martin Perera put the direct question : "Was it Alisandiri "‑the name by which the accused was ordinarily known. The wounded woman nodded her head in answer to this question. As to this fact and that it was a nod of assent, no witnesses seemed in any doubt."
It was held by their Lordships of Privy Council that a statement made by signs would be a verbal statement within the meaning of section 32. Their Lordships also observed: "It is of course true that evidence of signs is of an ambiguous or uncertain character and not to be admitted at all and that in many cases the evidence though admissible might be of little weight. It is no doubt also true that answers to questions of a leading character may be of little weight; but in the circumstances of this case, Martin Perara's question was in its context other than a mere leading question."
In the above case, it appears, apart from the evidence of the deceased woman, the other evidence on record was that shortly before the incident the accused was seen near the house of the deceased woman in conversation with her and about the time of occurrence he was seen going into a thicket and behaving in a suspicions and excited manner and thereafter was found bathing in a stream and then leaving on his cycle. The plea of an alibi taken by him was also found to be false. All this other evidence it was held by their Lordships, though not sufficient to warrant a conviction was not only consistent with the statement of the deceased but pointed in the same direction. Accordingly their Lordships held that the conviction was abundantly justified and indeed, it was inevitable.
In the present case simply the dying declaration (Exh. 3) as recorded by the doctor was proved and neither did he nor did any other witnesses depose what questions he put and what signs Bashir made in answer to those questions of which e answers were given by sins P. W. 9 Abut Kashem, the compounder of the Thana Dispensary who was an attesting witness to the dying declaration has simply stated that Dr. Mohsin recorded the dying declaration and that he was present at that time P. W. 1 Tola Bibi and P. W. 6 Esharat who were also present at that time of the dying declaration did not say anything about it in their evidence. The dying declaration in this case is undoubtedly admissible in respect at least of those answers that were given through the lips. Therefore the dying declaration cannot be rejected as altogether inadmissible. Question No. 4 was "Who has beaten you And moving the lips the wounded man replied slowly, Chakman'. This statement made before the doctor corroborates the evidence of the local witnesses that Bashir stated that his throat had been cut by Chakman. The next most important question "Was there any light", was replied to "in the affirmative by indication." The indication most probably was nodding of the head but it was not recorded that the injured nodded his head. Having regard to the statement of P. Ws. 1, 2, 4, 5, 6, 12 and 15 regarding the statement of Bashir and also the statement recorded by Dr. Mohsin, I am clearly of opinion that Basbir mentioned the name of Chakman as his assailant.
Mr. Mallik has rightly conceded that a conviction under law can be based solely on the evidence of a dying declaration vide 9 D L R 1, P L D 1964 Pesh. 67, 12 D L R 30 and P L D 1965 S C 151. A dying declaration when admitted under section 32 of the Evidence Act stands on the same footing as c the evidence of any witness but great caution has to be taken in assessing its value as it is not subjected to cross‑examination. Mr. Mallik has contended that the dying declaration in a case where it forms the sole evidence regarding the guilt of the accused it must be such that in the light of surrounding circumstances it may be accepted as true beyond a shadow of doubt. He has referred to certain discrepancies in the evidence of the witnesses regarding the statement of Bashir to the witnesses. He has pointed out that while according to the remaining witnesses Bashir stated that Chakman cut his throat and his wife and mother‑in‑law were in collusion with him, P. W. 6 and 15 stated that these two women "helped" Chakman and further that the statement in the recorded dying declaration also would seem to suggest that wife and mother‑in‑law of Bashir were present at the time of cutting of his throat. Mr. Mallik has also pointed out that while none of the other witnesses says that Bashir stated that Chakman too was sleeping on the southern verandah of his but along with Bashir on the night of incident the statements of P. Ws. 4 and 15 indicate that Bashir stated that Chakman also slept on the same verandah of his but on the night of incident. Mr. Mallik has submitted that the above discrepancies show that the reported statement of Bashir is not of such nature as may be acceptable as true beyond any reasonable doubt. This contention cannot be brushed aside as without substance in a case where the conviction is based on the sole evidence of dying declaration.
Mr. Mallik has laid special emphasis on the fact that according to the evidence, the source of recognition was glow of light coming through the chinks of split bamboo wall. He has contended that without evidence that enough light could come through the chinks of the wall, the story of recognition cannot be accepted. Now a "chink" means a narrow opening and it is doubtful whether such openings in a split bamboo wall would enable enough light to pass out for the purpose of recognition of a person in the verandah outside the wall. It was for the prosecution to produce evidence to show that Bashir had the opportunity of recognition as the openings were sufficiently large. With the discarding of the evidence of the Investigation Officer on this point, there is absolutely no evidence as to the nature of the "Chinks". Story of recognition by means of glow of light passing through "Chinks" without specification of their nature bears an inherent element of uncertainty and doubt about it. It cannot be held that just because there would be chinks in a split bamboo wall, sufficient rays of light would pass through them to create a glow of light outside the wall, or even if there be a sort of a faint glimmer it would be strong enough to enable recognition of a person. In the circumstances, it would be most unsafe to uphold the conviction of the appellant on the basis of the alleged statement of recognition of the appellant to the witnesses.
It is true that there appears some motive for the appellant for committing the crime but unless there is reliable evidence to establish the guilt of the accused, the evidence of motive is of no avail to the prosecution. On the other hand, it appears that the deceased was labouring under the impression that the appellant had an illicit connection with his wife and therefore, as contented by the learned Advocate for the appellant, Bashir may have stated that he recognised Chakman, having surmised that he must have been the assailant without actually having seen him.
In view of the above facts and circumstances, we find that the appellant should be given the benefit of doubt and his appeal should be accepted.
The appeal is accordingly allowed and the order of conviction and sentence is set aside and the reference is rejected.
Let the appellant be set at liberty, at once, if not wanted in connection with any other matter.
Appeal accepted.
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