1. ABDUL HAKIM, J.-This appeal is directed against an order of conviction' passed by the learned Sessions Judge, Dacca sentencing the accused appellant under section 304 (Part 1), P. P. C. To suffer rigorous imprisonment for seven years.
2. The deceased Hayat Bibi and the accused Rahmat Baksh alias Daroga Ali are inter-related and they used to live in the adjacent houses.
3. The prosecution case, in short, is that on the 10th Falgoon, 1371 B. S. (corresponding to 22nd February 1965) at Magrib prayer time, at the instance of the Mutwali of Masjid Waqf Estate, Fakirapul, accused Rahmat Baksh alias Daroga Ali went to the shop of complainant Amanulla and his brother Obaidulla and attacked them with the intention of ousting them from the land on which the shop stood close to the Masjid. Accused Rahmat Baksh attempted to assault Obaidulla but the local people intervened. Accused Rahmat Baksh stood on 'the road and brandished his knife towards Obaidulla while leavi og the shop. A few minutes thereafter cries were heard from the road in front of the house of one Hamid Sardar, as accused Gulbahar (since acquitted) pulled Hayat Bibi by catching hold of hei hair and threw her on the road and accused Rahmat Baksh alias Daroga Ali inflicted several stab injuries on Hayat Bibi with a knife and she fell down senseless. Soon her sons Obaidulla, Amanulla and others came to the spot but the accused fled away in the meantime.
4. Hayat Bibi was removed to the Dacca Medical College Hospital by her sons and admitted there as an Indoor patient. On the very day of occurrence after return from the 'Hospital Amanulla lodged ejahar with the police at Ramna P. 'S. On the abo---ie allegations. P. W. 16 Md. Sekandar Ali, a Sub- Inspector of police, Ramna examined the victim in the Medical College Hospital next day, recorded her statement and finding her condition precarious, sent a requisition to the Sub-Divisional Magistrate, Dacca for recording her dying declaration by a Magistrate. In pursuance of the requisition, Mr. A. Rahman, Magistrate, 2nd Class, Dacca came to the Medical College Hospital and recorded the dying declaration of Hayat Bibi on 23-2-65 at 12-35 p.m. In the statements Hayat Bibi mentioned that Gulbahar pulled her by catching hold of hair and threw her on the road and Rahmat Baksh alias Daroga Ali stabbed her. Hayat Bibi succumbed to her injuries on 26-2-65, The local police investigated into the case and submitted charge-sheet against the accused appellant Rahmat Baksh and co-accused Gulbahar under sections 302 and 302/109, P. P. C. Respectively.
5. A First Class Magistrate, Dacca held preliminary inquiry into the case, found prima facie materials against the accused and' accordingly committed them to the Court of Session to face trial on the above charges.
6. The plea of the accused was one of innocence. They asserted that the prosecution case was false and they had been implicated in the case out of grudge. The defence specifically suggested that on the previous night complainant Amanulla and his brother Obaidulla Assaulted the nephew of Rahmat 'Baksh and on the alleged evening Rahmat Baksh went to the shop of Amanulla and Obaidulla to inquire as to why his nephew was assaulted. Amanulla who is a wrestler dealt some blows to Rehmat Baksh who then fell down in the drain unconscious. On that evening Gulbahar having heard that her son Rahmat Baksh alias Daroga Ali had been given heavy blows by Amanulla and Obaidullah, was proceeding towards their shop and on the way, Hayat Bibi pushed down on the road and sat on her chest pressing her and she was about to collapse, when a young man resembling one RAW came there armed with a knife and inflicted stab injuries on Hayat Bibi and went away.
7. Sixteen witnesses for the prosecution and none for the defence were examined in the case. The prosecution also proved the dying declarations Exhs. 5 and 6 to substantiate the charges under sections 302 and 302/109, P. P. C. The learned Judge disbelieved the direct evidence furnished by the local witnesses but relying mainly on the dying declarations Exhs. 5 and 6, convicted and sentenced the accused appellant Rahmat Baksh alias Daroga Ali under section 304 (Part I), P. P. C.
8. As mentioned above and acquitted the co-accused Gulbahar by his judgment dated 16-2-66.
9. Being aggrieved thereby the accused-appellant preferred this appeal.
10. The only question for consideration in the case is whether the dying declaration Exhs. 5 and 6 are genuine and true and whether these dying declarations can safely be acted upon for conviction of the accused appellant.
11. P: W. 5 Nazimunnessa and P. W. 6 Salahuddin are only the two eye-witnesses in the case. The other local witnesses, namely, P. Ws. 1, 3, 7, 8, 9, 10 and 11 have been examined just to corroborate the eye- witnesses. P. Ws. 12, 13 and 14 are some formal witnesses. P. W.
15. A. Rahman, is the Magistrate who recorded the dying declaration Exh. 5 and P. W. 16 is the Investigating Officer who recorded the4statement Exh. 6.
12. P. W.5 Nazimunnessa stated in her deposition that she saw Gulbahar (Mother of accused Daroga Ali) to pull down Hayat Bibi (mother of informant Amanulla) by catching her hair and accused Daroga Ali to stab at the left side of the back of Amanulla's mother and also on her hands. This witness was not named in the First Information Report. She was examined by the police officer on 16-3-65, whereas the occurrence took place on 22-2-65. She did not mention about Daroga Ali's mother at all to the Investigating Officer P. W.
16. She also contradicted P. W. 16 on other material points. In the circumstances, the learned Judge disbelieved her presence on the spot and discarded her evidence. The reasons recorded by the learned judge in disbelieving her evidence cannot be called unfounded.
13. P. W. 6 Salahuddin is a minor by of 11 years. He deposed to the effect that Daroga Ali's mother (Gulbahar) and Amanulla's mother (Hayat Bibi) were coming from the west and when they reached in front of Hamid Sardar's gate, Daroga Ali's mother pulled down Amanulla mother by hair and accused Daroga Ali stabbed her with knife at the left side of her back and also on her hands.
14. He contradicted the Investigating Officer on material points. He also contradicted on vital points his earlier statements in committing Court put in under section 288, Cr. P. C. He is a child witness and susceptible to tutoring. Considering the age and demeanour of the witness and also the contradictions made by him on material points, the learned Judge disbelieved his evidence and it seems rightly.
15. The evidence of the two eye-witnesses, P. Ws. 5 and 6 having been disbelieved by the learned Judge on good reasons, any number of corroboration thereof, cannot improve the lot of the prosecution. The direct evidence having failed, the corroborative evidence is of no help.
16. P. Ws. 1, 3, 7, 8, 9, 10 and 11 have also been contradicted by the Investigating Officer P. W. 16 on vital points. Some of them have further been contradicted by their. Committing Court's statements put in under section 288, Cr. P. C. P. Ws. 1 and 3 are the sons of the victim Hayat Bibi. P. W. 7 is the brother of P. W.
6. P. W. 8 is related to deceased Hayat Bibi and has got litigation with accused Daroga Ali P.
17. W. 9 has said nothing about the occurrence and proved only the earlier incident that took place in the shop of P. Ws. Amanulla and Obaidulla. Consi--dering all these facts, the learned Judge disbelieved their evidence with reasons recorded in the judgment. The learned Advocate appearing for the State does not challenge the rejection of evidence of above P. Ws. And has frankly conceded that the evidence of the prosecution witnesses, as indicated above, has rightly been disbelieved and no exception can be taken thereon. We are also satisfied that the evidence of the witnesses mentioned above, have been disbelieved by the trial Court with good reasons and there is no scope to disturb the reasonings recorded by the learned Judge in this respect.
18. Let us now come to the point, whether the dying declaration --Exhs. 5 and 6 are genuine and true and whether these are sufficient to warrant conviction or can by themselves be the basis of conviction in the case.
19. Mr.-A. Rahman, Magistrate, 2nd Class, Dacca has deposed to the effect that under order of the Sub-Divisional Magistrate, on 23-2-65 he went to the Dacca Medical College Hospital to record a dying declaration and he recorded the dying declaration of Hayat Bibi on 23-2-65 at 12-35 p.m. In presence of Hospital doctor, House Surgeon Dr. Muntakim. He stated that deceased Hayat Bibi made the dying declaration to him in Bengali language but he recorded it in English. He further stated that he -translate it again into Bengali to Hayat Bibi and she admitted it to be correct and put her left thumb-impression on the, dying statement marked as Exh. 5.
20. The dying statement Exh. 5 is admittedly written in English. The declarant made the statement in Bengali in Exh. 5, there is no endorsement to show that the dying declaration written in English was translated into Bengali and read over and explained to the declarant. In the absence of any such endorsement in the dying declaration Exh. 5, it is not clear on what basis P. W. 15 stated in Court that he translated it again into Bengali and read it over to the declarant.
21. It has been held in numerous decisions that a dying, declara--tion should be recorded in the words of the maker as far as practicable. In some cases, even a dying declaration recorded not in the words of the declarant but in the improved language or words of the recording officer has been found with disfavour. In this connection the cases reported in 7 D L R 141 and 1.958 Criminal Law Journal (Supreme Court of India) 106 may be referred to.
22. Deceased Hayat Bibi made the statement in Bengali. It is not conceivable why the recording officer recorded it in English and not in Bengali, the language of the declarant and also in the words of the maker as, far as practicable. The practice of recording a dying statement in the language other than the language of the declarant should be discouraged.
23. It should, however, be made clear that in a fit case, a dying declaration recorded in Englis while made in Bengali may be accepted in evidence, if the d0laration contains a certificate to the effect that it was translated into Bengali, the language of the maker and read over and explained to the maker who admitting it to be correctly written, signed or put L. T. I, on it and there is also other supporting evidence on record in that behalf. The practice of recording-the dying declaration in the language other than the language of the declarant is, no doubt, deprecable but the statement recorded in one language while made in another language will be admissible in evidence if a certificate is given by the recording officer that it was translated into the language of the maker and read it over to the deceased and the latter admitted the same to be correctly written and put his signature or thumb-impression on it. This view receives support from the case of State v. Bahar Ali (11 D L R 258).
24. In the instant case, the recording Officer did not give any certificate at the bottom of the dying declaration Exh. 5 to the effect that the statement recorded On English was translated into Bengali and it was read over to the deceased who admitted the same to be correctly written and put signature on it. In the absence of any such certificate in the dying declaration, it can--not be safely said that the facts recorded in the dying declaration were the actual version of the deceased.
25. There is also no other supporting evidence on record in this respect. House Surgeon Dr. Muntakim has not been examined in the case. Thus a room for doubt remains in the matter.
26. It is true that the Magistrate who recorded the dying declaration is a responsible public servant and he has no reason to write anything incorrectly but the perfunctory manner which he has recorded the dying declaration in the presence case and his non-issuing of any certificate, as indicated above, speak volumes in the matter and bring cloud upon the genuineness of the document.
27. The informant Amanulla stated in the first information report, Exh. 3 that accused Rahmat. Baksh caught hold of her mother by the neck, pushed her down and caused bleeding injuries on her hands, her back above the waist and her forehead by a knife. He did not- at all mention about co- accused Gulbahar in the first information report. He named therein another Amin Baksh as an accused. In the Court the prosecution has introduced a different story and implicated accused Rahmat Baksh and Gulbahar in the murder case leaving aside Amir Baksh. It is true that the first information report is not a substantive evidence and it is used only to contradict or corroborate the informant. But the fact remains that the story given in the first information report is the earliest prosecution story and that story has been subsequently developed in the trial. This attempt to develop the prosecution case at the trial stage indicates that the prosecution did not come before the Court with clean hands. It is curious to note here that the dying statement Exh. 5 proved in the case supports the prosecution story lately developed in the Court. This is another circumstance in the, case which also brings some doubt about the genuineness of the dying declaration of Hayat Bibi. This dying statement was made on the following day at noon and the possibility of prompting, in the circumstances, cannot be altogether ignored.
28. P. W. 1 Amanulla has made a categorical statement in the Court that on going to the place of occurrence he found his mother Hayat Bibi senseless and she was removed to the Hospital in that condition. She died on 26-2-65. He used to go to the Hospital to see his mother every day at 4. p. m.
29. And he found P her there unconscious. She could not talk to him after the occurrence till her death.
30. This statement of P. W. 1 gives a death blow to the dying statement proved in the case. If Hayat Bibi was senseless in all these three days, how could she make any dying statement to P. W. 15 or to anybody else on 23-2-65. The evidence of P. W. 1 clearly indicates that Hayat Bibi had no ability to make any dying statement to anybody at all. Considering all these facts, it appears that the dying declaration Exh. 5 is of doubtful nature and not a genuine document.
31. It is better to speak less about the other dying statement Exh.
6. The learned Advocate for the State has frankly conceded that the dying declaration Exh. 5 recorded by P. W. 15 having been brought on record, the alleged dying statement Exh. 6 (a statement under section 151, Cr. P. C.) need not be brought on record and it is redundant. P. W. 16, the investigating officer finding the condition of injured Hayat Bibiprecarious, sent a requisition to the Sub-Divisional Magistrate with a request to arrange for recording her dying statement by a Magistrate. Accordingly P. W. 15 Mr. A. Rahman came to the Hospital and recorded the dying declaration Exh.
6. When a Magistrate has recorded a dying declaration, on the requisition of the investigating Officer, it is not understood why P. W. 16 produced the statement of Hayat Bibi recorded under section 161, Cr. P. C., before the Court for treating the same as a dying declaration. The police officer seems to be' over cautious and have taken unusual interest in the case. This statement is also exactly in the same line like the other one.
32. The reasons for which the dying declaration Exh. 5 cannot be accepted as genuine, apply equally to Exh. 6 too. There is still another matter against the Exh.
6. Exh. 6 which is originally a statement under section 161, Cr. P. C., has been alleged to be recorded on 23-2-65 but it seems to bear date "28-2-65" in two places. It appears that the figure "8" in "28" has been over-written as figure "3" to make it "23". We have carefully looked into the matter and it raises a doubt as to whether it was recorded on 23-2-65. Be that as it may, the document is not above suspicion and we do not put any reliance on it.
33. The learned Judge also has not put full reliance on the dying declarations so far as accused Gulbahar is concerned and given her the benefit of doubt.
34. Thus considering all aspects of the matter, we hold that the dying declarations Exhs. 5 and 6 are not bona fide and genuine documents and these documents cannot safely be acted upon. In this view of the matter, we find difficulty to maintain the conviction of accused-appellant solely on the basis of the above dying declaration, In the circumstances, the accused----appellant Rahmat Baksh alias Daroga Ali is at least entitled to benefit of doubt and we allow him the benefit of the same.
35. For the reasons stated above, the order of conviction is set aside and the accused is acquitted.
36. This appeal is allowed. The appellant is discharged from his bail bond.
37. AHSANUDDIN CHOUDHURY, J.=I agree.