1. ABDUL HAKIM, J.--This appeal is directed against an order of conviction made by Mr. S. K. Roy Sardar, Additional Sessions Judge, Sylhet sentencing the five accused appellants-under section 302/34, P. P. C. to transportation for life each.
2. The prosecution case, in short, is that shortly after evening on Tuesday, the 21st day of Poush, 1371 B.
3. S. (corresponding to 5-1-65) while deceased Abdur Rahman member was returning home along with his servant P. W. 1 Ainullah escorted by accused Idris after having an Iftar meal on invitation at the house of that accused and reached a place near a graveyard on a public road in village Badertek, P. S. Sunamgonj, District Sylhet, the accused-appellants Abdur Rahman, Syed Ali, Dud Mia, Harmuj Ali and Idris Ali attacked him all of a sudden and assaulted him with dangerous weapons.
4. On the morning of that day accused Idris Ali invited the deceased Abdur Rahman to a feast following Iftar at his house. On the very said date at about 4-30 p.m. Idris Ali came to the house of deceased Abur Rahman and requested him to go to his house. In the first instance, deceased Abdur Rahman hesitated to go to the house of accused Idris but due to insistence of Idris Ali and assurance by him that he would escort him back to his house, deceased Abdur Rahman took Ainullah in his company and went to the house of accused Idris Ali. Taking meal immediately after the Iftar, deceased Abdur Rahman started for his house in the company of Ainullah and accused Idris. As he reached the road on the south of the graveyard of his village accused Idris Ali said "1 have brought the shala after feeding him on invitation. Catch hold of him". Immediately accused persons namely, Abdur Rahman, Syed Ali, Dud Mia, Harmuj Ali and some others had encircled him with deadly weapons. Accused Syed Ali gave him a knife blow. Accused Rahman and Dud Mia struck him with daos and accused Harmuj and one Abdul Ahad (since discharged) inflicted blows with khanta and roller respectively. The victim Abdur Rahman and P. W. 1 Ainulla raised hue and cries and on their alarm. P. W. 2 Shipu, P. W. 6 Abdul Hamid, P. W. 7 Abdur Rashid, P. W. 11 Abu Taher, P. W. 17 Abdul Ali and others came to the spot, saw the occurrence and heard about it. P. W. 2 Shifu focussed his torch light and recognised the accused P. W. 1 also recognised the accused persons. P.
5. W. 6 also saw the accused persons running away and recognised three of them. The injured named the five accused to the above P. Ws. on the spot. He was then brought to his house by the local witnesses and thereafter taken to the Civil Hospital, Sunamgonj where he ultimately succumbed to his injuries at about azan time (dawn) following the occurrence. The injured Abdur Rahman mentioned the names of his assailants to P. Ws. 3, 8 and 9 at his house. He also made a dying statement in the Sunamgonj Hospital, andit was recorded by P. W. 4 Doctor Khalilur Rahman, the Sub-Divisional Medical Officer, Sunamgonj. His nephew P. W. 3 Abdul Wahed lodged ejahar with the local police on the above allegations. The Police seized the alamats, investigated into the case and submitted charge-sheet against the accused persons under section 302/34, P. P. C. After the preliminary enquiry held by a competent Magistrate, the five accused-appellants were committed to the Court of Sessions to face trial on the above charge.
6. The plea of the accused was one of innocence. They asserted that they had been falsely implicated in the case out of grudge and enmity with the informant.
7. Twenty witnesses for the prosecution and none for the defence were examined in the case. Some documents were also produced before the Court. The learned Additional Sessions Judge on appraisal of the evidence and materials on record, convicted and sentenced the accused- appellants under section 302/34, P. P. C. as mentioned above. Being aggrieved thereby they have preferred the present appeal before this Court.
8. Mr. A. T. M. Afzal, learned Advocate for the appellants has taken us through the judgment and depositions. He has argued that the alleged eye-witnesses, P. Ws. 1 and 2 are not dependable and they cannot be relied upon and the learned Judge has rightly disbelieved them on the question of recognition. The possibility of recognition of the accused by the deceased is remote and the dying statement made by him is based more on suspicion than on actual recognition. The recorded dying statement Exh. 2 is a fabricated document and it has no evidentiary value.
9. P. W. 1 Ainullah alias Ain Ali is a servant, P. W. 2 Sifu is a distant relation, P. W. 3 Abdul Wahab is a nephew, P. W. 8 Rupban is the wife and P. W. 9 Jobeda is the niece of the deceased. The other local witnesses are not in any way connected with the victim Abdur Rahman member.
10. It appears from the records that P. W. 9 Jobeda, niece of the deceased was first married to P. W. 1 Ainulla about four years ago. Out of that wedlock Jobeda got a male child about years old at the time of occurrence. Jobeda's father is alive but he is blind. Deceased member used to look after the affairs of his brother. On the wake of his second marriage, Ainulla divorced Jobeda some time back and she was married to accused Abdur Rahman about 1 months before the occurrence. She was given in marriage on condition that the child would be taken with her. Jobeda along with her infant child went to the house of accused Abdur Rahman but within a week her child was returned.
11. About 3/4 days before the occurrence Jobeda out of her motherly affection as well as being unable to continue with her breasts swollen with too much milk, she fled away from the house of accused Abdur Rahman and came to the house of her parents. Both Jobeda and P. W. 8 Rupban said that in the early morning on the date of occurrence there was a salishat the house of the deceased over the return of Jobeda to the domain of accused Abdur Rahman. The deceased Abdur Rahman member insisted to take the child with Jobeda but the accused did not agree that the child should accompany his mother. Accused Abdur Rahman and his relations were thus annoyed over the matter.
12. Accused-appellants Nos, 1 and 2 Abdur Rahman and Syed Ali are full brothers. Appellant No, 3 Dud Mia is ukil sasur (father-in-law by matrimonial agency) of appellant No,
1. Appellant No, 4 Idris Ali is the sister's husband of appellants Nos 1 and 2. Appellant No, 5 Harmuj All is cousin of appellants Nos, 1 and 2.
13. All the accused-appellants come from the same village Badertek. The deceased and the accused were co-villagers. Accused No, 1 Abdur Rahman is the husband of the niece of the deceased.
14. Accused No, 4 Idris Ali is the ukil jamai (son-in-law by matrimonial agency) of the victim Abdur Rahman.
15. The fact that Abdur Rahman member of village Badertek was attacked and injured by the miscreants on 5-1-65 at a place near the graveyard on the public road of the said village shortly after the evening, say in between 7 and 7-30 p.m. is not disputed. The fact that the injured Abdur Rahman member died as a result of the said injuries is not also challenged. The evidence of the local witnesses, namely, P. Ws. 1, 2, 3, 6, 7, 8 and9 coupled with the evidence of the Doctor P. W. 5 proved beyond reasonable doubt that Abdur Rahman member is dead and died as a result of the injuries received at a place and time as alleged by the prosecution. P. W. 5 Dr. Shafiul Islam who held post-mortem examination on the dead body of Abdur Rahman member, found several injuries on his person and opined that the victim died due to shock and haemorrhage as a result of the injuries which were ante-mortem and homicidal in nature.
16. The question for consideration now is whether the occurrence took place in the manner as alleged by the prosecution and whether the accused-appellants were responsible for the murder of deceased Abdur Rahman member.
17. It appears from the evidence of P. Ws. 8 and 9 that at the late morning of 21st Poush, 1371 B. S. (5-1- 65) accused Idris All who was ukil jamai of deceased Abdur Rahman requested the latter to take feast after Iftar at his house. Idris Ali also came personally to the house of the deceased at about 4-30 p.m. to take him to his house. Abdur Rahmann member was at first unwilling to go but due to much pressure and assurance by Idris that he would escort him back to his house, the deceased accepted the invitation of accused Idris and went to his house at Iftar time in the company of P. \V.
18. 1 Ainullah.
19. P. W. 10 Huron Ali has deposed to the effect that he took deceased Abdur Rahman member, P. W. 1 Ainullah and accused Idris in his boat and got them crossed the khal near his house. On his query they said that they were going to take feast in the house of Idris Ali on his invitation. P. W. 13 Kafiluddin has stated that he saw deceased Abdur Rahman member and P. W. 1 Ainullah (Ain Ali) and also the five accused-appellants at the house of accused Idris where he also took his Iftar.
20. These two witnesses are absolutely independent. The above evidence shows that deceased Abdur Rahman in the company of Ainullah went to the house of accused Idris that evening to take Iftar and feast and they actually took Iftar in that house with the five accused-appellants.
21. The evidence against the accused-appellants are two-fold. The rrosecution has tried to prove its case by adducing direct evidence through P. Ws. 1 and 2 the alleged eye-witnesses and also by proving the dying declaration of the deceased. Let us first see how far the prosecution has succeeded to prove its case by direct evidence through the mouths of P. Ws. 1 and 2.
22. P. W. 1 Ainullah (Ain Ali) has stated in his deposition that on 21st Poush, 1371 B. S. (corresponding to 5-1-65) he was in service in the house of deceased Abdur Rahman member and on that day after asar prayer time he found accused Idris at the house of his master. On the persistent request of accused Idris member Abdur Rahman in the company of himself started for the house of accused Idris to attend invitation of eating. The house of accused Idris is about one-quarter mile north of the house of the deceased member. They crossed the intervening khal in the boat of P. W. 10 Nuron Ali.
23. They reached the house of accused Idris and took Iftar and feast there. Accused Idris, Syed, Harmuj and Dud Mia took their meals with them. After the feast accused Syed, Dud Mia and Harmuj went away. He and Abdur Rahman member escorted by accused Idris started for their house. When they came near the gorsthan (graveyard) Idris said "Brother-in-law has been fed. Catch hold of him".
24. Simultaneously 3/4 persons surrounded Abdur Rahman member. They are accused Idris, Harmuj Syed, Dud Mia and others. They assaulted the member with knife, dao, khanta etc. He and the member raised alarm and P. W. 2 Shifu focussed his three-celled torch light and came to the spot at once. The witness recognised the four accused Idris, Syed, Harmuj and Dud Mia in the flash of his torch-light. The other P. Ws. namely, Abdul Hamid (P. W. 6), Abdur Rashid (P. W. 7), Abu Taher (P. W.
25. 11), Abdul Ali (P. W. 17) and others came, saw the occurrence and heard about it. The accused then ran away. He went near the member who was lying injured.
26. He found one blood-stained knife lying near the member. The member stated the names of accused Syed, Harmuj, Dud Mia, Idris and Abdur Rahman as his assailants. Shifu also told that he recognised accused Idris, Syed, Harmuj, Dud Mia and Abdur Rahman in the flash of his torch-light.
27. The member was then taken to his house and thereafter to the Sunamgonj Hospital where he made a dying statement and expired at about azan time next morning.
28. The prosecution drew the attention of the witness, to his earlier statement in the committing Court and he admitted that he stated before the Magistrate that accused Abdur Rahman also took his meal along with other accused in the house of accused Idris and he saw accused Abdur Rahman also in assaulting the deceased. The prosecution, in the circumstances, put in the committing Court's statement of the witness under section 288, Cr. P. C. It appears from his Committing Court's statement which is also subtantive evidence that he mentioned accused Abdur Rahman very well there as one of the assailants of deceased Abdur Rahman member.
29. The defence has raised several criticism against this witness. It has been contended that P. W. 1 Ainullah being the first husband of P. W. 9 Jobeda and a candidate for remarrying her, he is likely to be hostile to accused Abdur Rahman and as such his evidence cannot be safely accepted. This grievance, in our opinion, does not stand scrutiny. The evidence, as indicated above, showed that the witness was bent upon to help accused Abdur Rahman in the trial Court. He mentioned accused Abdur Rahman in the committing Court but he omitted to name him in the Sessions Court. That being the position it cannot be said that the witness was hostile to accused Abdur Rahman and falsely deposed against him.
30. The learned Advocate for the accused-appellants has pointed out that P. W. 1 Ainullah contradicted the investigating officer P. W. 18 on a vital point, namely, pulling out of the knife from the body of the deceased and also contradicted his committing Court's statement with regard to the use of a green paper by the doctor P. W.
4. The contradictions referred to above do not help the defence in any manner. A blood-stained knife having been seized by the police, the inconsistency as to whether it was lying near the member or pulled out from the abdomen of the member is not very material and it does not falsify the presence of P. W. 1 on the spot nor affect the prosecution case in any way. In view of the positive evidence on record, there cannot be any manner of doubt that this witness P. W. 1 accompanied the deceased while going to and returning from the house of accused Idris and in the facts and circumstances of the case there cannot be any suspicion as to his own complicity in the crime. Regarding the use of green paper by the Doctor P. W, 4, there is practically no contradiction and the inconsistency, if any, is explainable. This story of green paper or white paper used by the doctor will be considered separately in due course. Discrepancies on minor points are not fatal and the evidence of a witness cannot be disbelieved merely due to some minor contradictions.
31. It has next been contended that P. W. 1 suppressed certain material facts before the Court. He told P. Ws. 2 and 18 that three persons Hashem, Matleb and Mannaf caught hold of him during the occurrence but he is silent in the Court as to his catch by those persons. He submits that the witness who suppressed material facts in the Court and gave somersault in respect of accused Abdur Rahman is a basically dishonest witness and his evidence cannot be safely accepted. The omission referred to above is on a minor point. The prosecution does not put forward any case that P. W. 1 was also attacked and assaulted. No such case having been made out, it is not necessary to introduce the story of catch by Hashem, Matleb and Mannaf in the present case. The omission is not material and it does not affect the veracity of the witness.
32. It is true that the witness made one statement in the committing Court and another statement in the trial Court so far as accused Abdur Rahman is concerned. He named accused Abdur Rahman in the committing Court and that receive corroboration from the other evidence on record. It is an accepted principle that if a witness gives two different versions in two Courts and if the statement in the Committing Court is put in before the trial Court in accordance with law then the statement which is consistent with the other evidence C on record may be preferred. If the difficulty created by the volte-face of a witness can be resolved by referring to the other evidence in the case, his entire evidence need not be outright rejected merely due to the somersault given by him in two Courts. The unusual conduct of the witnesses no doubt, makes him shaky but there is no reason to discard his evidence altogether on that count. His evidence may be considered if corroboration comes from other independent sources. If no corroboration comes from any other source, a conviction on the evidence of such witnesses will be unsafe. Let us, therefore, see if there is any other evidence on record to corroborate him.
33. P. W. 2 Shifu has stated in his deposition that on 21st Poush, 1371 B. S. (5-1-65) at about 7 or 7-30 p.m. he had been to the bail of P. W. 7 Abdur Rashid to buy seedlings. While he was returning home and reached near the graveyard he heard cries of men and advanced and then focussed his three- celled torch light. He saw accused Syed, Dud Mia, Harmuj, Rahman, Idris Ali assaulting member Abdur Rahman with dao, knife and khanta. There were other men whom he could not recognise. He found P. W. 1 Ainullah at the place of occurrence. He cried and the accused persons fled away.
34. Other people came on hearing cries and he went near the member. A knife was recovered from near the member. The deceased Abdur Rahman mentioned the names of accused Syed, Dud Mia, Harmuj, Idris and Rahman as his assailants. Ain Ali told that he recognised the five accused Syed, Dud Mia, Harmuj, Idris and Rahman. He also named the five accused persons whom he recognised.
35. The learned Advocate for the accused-appellants has only State pointed out that he is a chance witness and the husband a distant chachata sister of the informant. The relationship suggested is very remote. His bari is just 60/70 cubits south east of the place of occurrence. He is a natural witness. He went to the house of P. W. Abdur Rashid for purchase of seedlings. P. W. 7 Abdur Rashid admitted that P. W. 2 Shifu went to his house that evening for purchase of seedlings. In the circumstances, there is no reason to think that he is a mere chance witness.
36. The witness has been cross-examined at length but nothing tangible has elicited against him. No enmity or bias has even suggested to the witness. The evidence of the witness is consistent allthrough and suffers from no defect. The investigating officer examined him and seized the torch- light just on the following day i,e, 6-1-65. There is nothing on record to impeach the veracity of the witness. We find no reason to disbelieve him. The story narrated by P. W. 1 thus receives support from the evidence of P. W. 2 on material particulars.
37. In this connection, we have got another important piece of evidence on record i,e, the evidence of P. we 6. Abdul Hamid has stated that on 21st Poush, 1371 B. S. after evening while he was returning from Matbar-kandi Bazar and reached near the gorsthan (graveyard) of Badertek he heard cries of Shifu and saw 10/12 persons running away. He recognised accused Syed, Dud Mia, Idris amongst them. He recognised them in the light of torch of P. We 2 while they were running towards north and came face to face of the witness at a distance of 20/25 cubits north of the member. He went near the member Abdur Rahman who was lying injured. The deceased said that accused Syed, Dud Mia, Rahman, Idris and Harmuj assaulted him. So also P. W. 1 Ainullah and P. W. 2 Shifu said that accused Dud Mia, Syed, Idris, Rahman and Harmuj assaulted the member and fled away. He saw the torch- light in the hand of P. we 2 Shifu and also-, saw the blood-stained knife near the member. This witness is also absolutely independent and disinterested. Discrepancy pointed out in his evidence with reference to the evidence of the investigating officer is very negligible. No enmity or bias has even been suggested to him. His evidence is straightforward and we find no reason to disbelieve his evidence. He has also supported the story narrated by P. Ws. 1 and 2 quite substantially.
38. P. W. 7 Abdur Rashid who came to the spot on hearing the alarm and heard about the occurrence from P. Ws. 1 and 2 has corroborated them on material particulars. Relationship suggested to him has been stoutly denied by the witness. There is no reason to disbelieve him. Thus the evidence of P. Ws. 1 and 2 being corroborative to each other and their evidence having received support from P.
39. Ws. 6 and 7 and P. Ws. 2, 6 and 7 having found to be absolutely independent, it seems, that the learned Sessions Judge wrongly disbelieved P. Ws. 1 and 2 on the question of recognition.
40. The investigating officer, P. W. 18 seized blood-stained earth from the place of occurrence. A blood- stained knife recovered from the spot was also seized by him. The Doctor P. W. 5 opined that the injuries might be caused by knife, daos, khanta etc. Having regard to the time and place of occurrence and the evidence as discussed above, we are of the view that the occurrence took place in the manner as alleged by the prosecution and the accused-appellants are responsible for the murder of Abdur Rahman member.
41. Now coming to the dying declaration, it appears that deceased Abdur Rahman member made three statements, one at the very spot to P. Ws. 1, 2, 6 and 7 ; one at his house to P. Ws. 3, 8 and 9 and one at Sunamgonj Medical Hospital to P. Ws. 4, 15 and 16. The dying declaration made at the hospital was recorded by P. W. 4 Dr. Khalilur Rahman, Sub-Divisional Medical Officer, Sunamganj and marked as Exh.
2. In all the dying statements the deceased Abdur Rahman member named accused Abdur Rahman, Syed Ali, Dud Mia, Idris Ali and Harmuj Ali as his assailants.
42. P. W. 1 Ainullah stated in his deposition that deceased Abdur Rahman member named accused Syed Ali, Harmuj, Dud Mia, Idris Ali and Abdur Rahman as his assailants then and there. P. W. 2 Shifu similarly stated that deceased Abdur Rahman member mentioned on the very spot the names of accused Syed Ali, Dud Mia, Harmuj, Idris and Abdur Rahman as his assailants. P. W. 6 Abdul Humid and P. W. 7 Abdur Rashid who came to the spot on hearing cries stated that injured Abdur Rahman member immediately mentioned the names of accused Abdur Rahman, Syed Ali, Harmuj Ali, Idris Ali, Dud Mia, as his assailants. P. Ws. 2, 6 and 7 as indicated earlier, are absolutely independent and there is no reason to disbelieve their evidence. The above dying statement of deceased Abdur Rahman, as reproduced by the above P. Ws., was made on the very spot then and there, before arrival of any relation of the deceased to the place of occurrence.
43. P. W. 3 Abdul Wahab stated that deceased Abdur Rahman was brought to his house in injured condition soon after the occurrence and he named accused Syed Ali, Abdur Rahman, Dud Mia, Harmuj and Idris Ali as his assailants. Similarly P. W. 8 Rupban and P. W. 9 Jobeda stated that deceased Abdur Rahman was brought home in injured condition and he mentioned the names of accused Abdur Rahman, Idris Ali, Syed Ali, Dud Mia and Harmuj as his assailants. These three witnesses are no doubt, relations of the deceased but it is quite natural that the victim soon after his return at home, would narrate to his relations as to how he was injured. The deceased made the statement implicating the above five accused as soon as he was brought back to his house, say within 15/20 minutes of the occurrence. Without getting any opportunity to be prompted by any body else. P. Ws. 3, 8 and 9 are natural witnesses and their evidence are allthrough consistent.
44. Enmity suggested to P. W. 3 regarding settlement of land in the name of accused Abdur Rahman has been stoutly denied by the witness and it has not been substantiated by any evidence. Mere relationship alone cannot be a ground to discard their evidence.
45. The injured Abdur Rahman member was then taken to Sunamgonj Hospital which is about three miles off. P. W. 4 Dr. Khalilur Rahman noticed several injuries on his person and operated upon him.
46. The condition of the victim being precarious, he also requisitioned one Magistrate for recording his dying declaration. The Sub-Divisional Magistrate, Sunamgonj by an endorsement on the requisitioned slip, asked the doctor to record the dying declaration of the victim himself. The endorsement of the Sub-Divisional Officer in slip Exh. 1 bore date 5-1-65 at 9-30 p.m. P. W. 4 then recorded the dying declaration of deceased Abdur Rahman on 5-1-65 at 9-30 p.m. The dying declaration reads as follows :- "I am going after making my statement before the Surgeon Saheb, Junab Dr. Khalilur Rahman, Sunamgonj Hospital at 9-30 o' clok in the night. I had been to take meal on being invited by my son-in-law while returning after taking meal from their house on the road (1) Syed Ali son of late
(2) Abdur Rahman son of Rupa Mia, (3) Idris Ali son of late Muslim, (4) Harmuj Ali son of late (5)
47. Dud Mia son of late . . . . . attacked with a sharp knife and began to assault me. I cried and they fled away. The occurrence took place at about 7 o'clock in the night."
48. The dying declaration Exh. 2 has been formally proved by the doctor. P. Ws. 15 and 16, the two male nurses of the hospital have corroborated the doctor P. W. 4 in this respect. There is no reason to disbelieve their evidence.
49. The dying statements made by the victim and proved by the above witnesses show that accused Abdur Rahman, Syed Ali, Idris Ali, Dud Mia and Harmuj Ali are the assailants of deceased Abdur Rahman member.
50. It has been contended on behalf of the defence that the victim being unconscious, it was not possible for him to make any statement and the night of occurrence being dark and foggy. The injured Abdur Rahman was not in a position to recognise his assailants and the statements made by the deceased at the spot or at the house or in the hospital were based on mere suspicion than on actual recognition. In this connection the learned Advocate drew our attention to the committing Court's statement of P. W. 11 Abu Taher (put in under section 288, Cr. P. C.) where the witness stated that the injured Abdur Rahman was almost unconscious and also to the evidence of P. W. 17 Abdul Ali where the witness admitted that the night of occurrence was very foggy. In support of his contention the learned Advocate also referred to two decisions reported in PLD 1965 SC 151 and PLD 1970 SC 13.
51. P. Ws. 11 and 17 were not examined by the prosecution but were just tendered for cross- examination. The defence cross-examined the witnesses. P. W. 11 in reply to a question put by the defence answered that he did not find the member (deceased Abdur Rahman) almost senseless and he did not state before the lower Court that he saw the member almost unconscious and groaning. The defence put in the committing Court's statement of the witness under section 288, Cr. P. C. and it appears therefrom that the witness stated so there. But his isolated statement in the committing Court does not receive support from any source whereas his statement in the trial Court gets corroboration from the other evidence on record. The committing Court's statement of the witness "Member was almost unconscious and groaning" does not mean that the deceased was fully unconscious and completely senseless. There is nothing else on record to show that the deceased Abdur Rahman, on receipt of the injuries, was absolutely unconscious and senseless to make any statement. In the trial Court, the witness categorically stated that the member was not senseless. The evidence of P. Ws. 1, 2, 6, 7 and that of P. Ws. 3, 8 and 9 clearly showed that the deceased Abdur Rahman was quite conscious even after receipt of the injuries and he made statements to them. P. W. 4 Dr. Khalilur Rahman stated that injured Abdur Rahman was in full sense when he made the dying declaration Exh. 2 at 9-30 p.m. The occurrence took place after the evening on 5-1-65 and the injured expired next morning at about azan time. The victim survived about 10 hours after the occurrence. In face of the above facts, it cannot be argued from an ambiguous and uncorroborated statement of the witness made in the committing Court that the deceased Abdur Rahman was unconscious and not in a position to make any statement to anybody.
52. P. W. 17 in reply to an abstract question put to him stated that the night of occurrence was very foggy. A night might be foggy but that does not mean that soon after the evening it was so foggy and the visibility completely disappeared. P. Ws. 1 and 6 have categorically stated that there was no fog at the time of occurrence. P. W. 2 stated that the time of occurrence was bit dark and a man could not be recognised from a distance of 15 cubits without the help of torch. This means that the time of occurrence was not so dark and a man could be recognised from a close range. P. W. 1 stated that the time of occurrence was neither moon-lit nor dark. On a reference to the almanac of the particular day it appears that it was the third phase of the new moon, although it was the first day of Ramazan in that area of the province. On 5-1-65 the sun set at 5-31, p.m. whereas the occurrence took place in between 7 or 7-30 p.m. That being the third phase of the moon, the moon might or might not be on the sky but the circumstances show the occurrence took place along with the setting of the moon when the twilight was existing. In the circumstances, it cannot be argued that the time of occurrence was completely dark and the visibility absolutely disappeared.
53. The injuries on the person of deceased Abdur Rahman appear to have been caused from the front or the sides. The injuries were caused by deadly weapons like knife, dao, khanti etc. and these injuries were inflicted from a very close range, say a foot or two. P. W. I stated that the accused encircled the victim and assaulted him. The evidence of P. W. 2 indicated that the accused assaulted the victim from a very close distance. These 5 accused are not only known to the deceased but are also related to him. They are all his co-villagers too. All these accused took Iftar and diet with the deceased just a few minutes back. In the circumstances, it cannot be said that deceased Abdur Rahman had no opportunity to recognise his assailants and he failed to recognise them. The accused being the co-villagers, relations and known persons and the injuries having been caused from a close distance and the occurrence, having taken place soon after the evening simultaneously with the setting of the moon, the claim of recognition by the deceased cannot be doubted. In my opinion, in the circumstances as indicated above, the deceased Abdur Rahman was in a position to recognise them and actually recognised the 5 accused who assaulted him and he was also in good sense to make statements to P. Ws. and made dying statements to them. In this view of the matter we find no force in the contention of the learned Advocate raised above.
54. The learned Advocate has also made grievance that the dying declaration Exh. 2 is a fabricated document and it has no evidentiary value. He has pointed out that P. Ws. 1 and 3 stated that deceased Abdur Rahman put his L. T.-I. on the statement recorded by the doctor P. W. 4 and P. W. 3 Abdul Wahab put his signature in that paper which was a piece of greenpaper. But the dying statement now produced before the Court is one written on an ordinary white paper and it does not bear the L. T.-I. of deceased Abdur Rahman or the signature of P. W. 3 Abdul Wahab. This means that the original dying declaration recorded by the doctor had been changed and the present dying statement, Exh. 2 produced in Court is a fabricated paper and it has no evidentiary value.
55. It appears from the evidence of P. W. 4 that he first operated the injured Abdur Rahman member and then, on receipt of the endorsement of the S. D. 0. on the requisitioned slip Exh. 1, recorded his dying declaration Exh.
2. He has stated that a "Consent Form" is required to be signed by every patient before operation. P. W. 2 Shifu stated that he accompanied the victim in the Sunamganj Hospital and in his presence the deceased Abdur Rahman member put his L. T.-I. in the paper meant for operation. The evidence of P. Ws. 1 and 3 indicate that deceased Abdul Wahab also signed that paper. A "Consent Form" is to be signed before a major surgical operation. Thus the prosecution wants to say that if the deceased put his L. T.-I. on any green paper and P. W. 3 signed that paper, that may be the "Consent Form". The explanation given by the prosecution in this respect can not be brushed aside.
56. P. W. 4 has categorically stated that he did not record the dying declaration in a greenpaper. Exh. 2 is the paper in which he recorded the dying declaration of the deceased. He did not take his L. T.-I. in the statement as he was unable to put his L. T.-I. He himself wrote the name of deceased Abdur Rahman because that was his first declaration which he never recorded before. P. W. 3 Abdul Wahab did not put his signature in the dying declaration Exh.
2. Similarly P. Ws. 15 and 16, the attesting witnesses also stated that the doctor recorded the dying declaration of the patient Abdur Rahman in the hospital in their presence and he recorded the declaration on a piece of white paper. The doctor himself wrote the name of member Abdur Rahman. No L. T.-I. of deceased Abdur Rahman or any signature was taken in that statement. In the face of the above evidence it cannot be argued that the dying declaration was recorded in a green-paper and it was thumb-impressed by the deceased and signed by P. W. 3.
57. The evidence of P. W. 18 shows that the dying declaration Exh. 2 was seized by the police on 6-1-65.
58. It was recorded on 5-1-65 at about 9-30 p.m. The dying statement having been seized by the police just on the following day, the scope of fabricating the document is very little and it cannot be readily accepted that the document was fabricated by P. Ws. 4, 15 and 16 in the meantime. In the circumstances stated above, we cannot accept the grievance that the original dying statement recorded by P. W. 4 was changed and the Exh. 2 is a fabricated paper. The contention of the learned Advocate thus fails.
59. A dying declaration is admitted into evidence on the principle of necessity. Dying declarations are admissible even if orally made. Dying declarations, when admitted under section 32 of the Evidence Act, stand on the same footing as any other evidence as to its value and credibility.
60. While dealing with a question of dying declaration the Court has to judge it from several stand- points. Some of the main tests for determining the genuineness of a dying declaration are (1) whether the maker had the physical capacity to make the dying statement ; (2) whether the maker had opportunity to recognise the assailants ; (3) whether there were chance of mistake on the part of the dying man in identifying and naming his assailants ; (4) whether it was free from prompting from any outside quarter and was not inconsistent with the other evidence and circumstances of the case ; (5) whether the witness who heard the deceased making the statement heard him correctly and whether their evidence can be relied on.
61. If a dying declaration stands the normal tests for judging its veracity, it becomes a wholly reliable piece of evidence and it can safely be accepted as a genuine and true statement of the maker. If the dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction.
62. There are numerous authorities to support the above propositions of law.
63. A dying declaration is a piece of evidence which is not tested in cross-examination. The maker of the statement not being subject to cross-examination, the manner in which he receives a question and replies it, the manner in which he faces the cross-examination and meets the objections affecting his veracity and such other factors by which the human judgment is assisted, are all absent. It is, therefore, in consonance that the Court shall carefully scrutinise all the physical circumstances as they appear from the evidence, to reach a conclusion with a degree of certainty that the account given by the deceased, of the manner in which he met his death is worthy of belief. Hence in order to be the sole basis for conviction on dying declaration alone, utmost care must be taken by the Court in considering the surrounding circumstances and compare them with the statements in the dying declaration for safe dispensation of justice. To find out the truth or falsity of a dying declaration the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can safely be deduced in the case. In the last analysis, as stated in some of the eminent judicial decisions, "the grain has to be sifted from the chaff" in each case, in the light of its particular circumstances. The cases reported in PLD 1965 SC 151 and PLD 1910 SC 13 referred to above have laid down the above principles.
64. In each case, the question of truth or falsity of the dying declaration shall be considered by its own facts and circumstances. Judging the facts of the instant case in the yardstick of the above principles and considering all aspects of the matter, it seems that the dying declaration proved in the case is genuine and true. It is free from all manner of taint and is a bona fide statement of the deceased. It has also been corroborated by circumstantial as well as positive testimonies of the local witnesses and so it can be safely relied upon.
65. Thus taking an over all view of the entire evidence on record, we hold that the charge levelled against the accused-appellants has been established beyond all reasonable doubt and they have been rightly convicted in the case.
66. It is a case of gruesome murder committed under a pre-arranged plan. The learned Judge has not recorded any extenuating circumstances for awarding the lessor sentence in the case. Since the order of conviction and sentence was passed on 21-12-65 and more than 4 years had already elapsed, we do not like to reopen the question of sentence at this stage.
67. The accused filed a Jail Appeal before presentation of this appeal. A regular appeal having been filed, the Jail Appeal does not call for any consideration separately. The Jail Appeal is thus disposed of herewith.
68. In view of the discussions made above, we find no substance in this appeal. Consequently the order of conviction and sentence is confirmed. The appeal is accordingly dismissed.
69. AHSANUDDIN CHOUDHURY, J.--I agree.