TUKU MIAH V. THE STATE — 3 BLD 193
Fact: On 27-10-75 the informant PW1 Whahid ali’s on Bablu returned home after dusk with his moveable stationary shop form lathiganj hat. He had his night meal and was taking rest in the courtyard, after some times the accused Mokhlesur Rahman come and took Bablu out of the house for a stroll. About half an hour after that while the informant fell asleep he was awakened by Mongloo who informed him that his son Bablu was stabbed and asked him to go to the house of Alim. Immediately the informant with his brother Eza and son Kader went to the house of Alim along with Mongloo and there he found his so bablu lying in the courtyard with multiple injuries in the abdomen while many people were assembled there. On his query Bablu said the accused Mokhles and Tutu had stabbed him near the side of logarpool and knocked him down in the ditch. He further said that he go out of the water and began to run towards house but fell down near the house of Alim fom where Mofazzal, Samad, Ajit, Sekand and others picked him up and took him to Alim’s house. The said dying statements of Bablu was recorded by Amjad and signed by many villagers who had heard the said statements being made by Bablu 2 or 3 hours after making this dying declaration Bablu died.
Issue: Whether only dying declaration is sufficient for conviction?
Argument: The defense party argued that the Ext. 2 itself does not show that it was a dying declaration but I was only a subsequent memorandum of the villagers. On the other hand the said dying declaration was a fabrication of the informant having enmity with the informant. It was also pleaded that the evidence on record were quite incredible. Moreover as per the P.W 10 the doctor who opinioned that it was quite impossible to give a declaration for the victim at that situation. They also pleaded minority as to the age of accused.
But the prosecution rebut quite well presenting the necessary points, such as, thus the document of Exit.2 does not contradict nor it is inconsistent with the fact that Bablu had make oral dying declaration. That the P.W. 10 also clearly stated that a person receiving such injury may have capacity to talk for about an hour and may remain alive for 2 to 3 hour. The said alleged minority of said accused was dismissed as they are at same age and one of them wanted to marry one of informant’s daughter so they were not minor. So far all the P.W’s supported the dying declaration so there was no scope for not believing it.
Judgment: The court found those two appeals have no merit and are dismissed. The conviction and sentence passed by the learned Addl. Sessions judge against the two accused are affirmed.
Opinion: In general sense hearsay evidence in inadmissible but section 32 of evidence act enables some situation when hearsay evidence is admissible, most important of them is dying declaration on which the present case based on but there must be certain principals to be followed, in this case they are followed as the dying declaration was made after the attack and just before the death in font of many witnesses who later supported the dying declaration in the court and the fact is proved. Also as per the claim of accused they fail to create reasonable doubt, So that dying declaration was sufficient to prove the conviction.
(Based on Evidence Act only)