Crl.A. 272/2003 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE C.R.SARMA Ranjan Gogoi, J Heard Mr Z Kamar, learned Public Prosecutor and Mr AM Mazumdar, learned senior counsel for the respondents/ accused. 2. At the outset, the learned Public Prosecutor has submitted that though in the cause title of the appeal the name of the accused No.1 Md. Amjad A li Sheikh has been shown, in fact, this appeal is against the acquittal of both the accused in Sessions Case No. 93/98 i.e. Md. Amjad Ali Sheikh and Md. Gajiur Rahman. As notices were issued to both the accused and appearance has been made on their behalf, the Court proceeds on the basis that the appeal is directed aga inst the acquittal of both the accused in Session Case No. 93/98 of the Court of the learned Sessions Judge, Dhubri. 3. The prosecution case in short that that on 30.7.97 between 7 and 8 p.m. the accused had caused the death of one Ayub Ali. The FIR filed by P.W.1 , Md Jahiruddin Sheikh led to registration of a police case in the Golakganj Pol ice Station which was duly investigated. On completion of such investigation, ch argesheet was submitted against the accused/respondents under Section 302/34 IPC . The case was, thereafter, committed to the Court of the learned Sessions Judge , Dhubri by order dated 4.12.98 of the learned Judicial Magistrate, 1st Class, D hubri. The accused/ respondents pleaded not guilty to the charge framed against them under Section 302/34 IPC and wanted to be tried. In the course of the trial , eleven witnesses were examined by the prosecution and none by the defence. Th ereafter, at the conclusion of the trial, the learned Sessions Judge, Dhubri by order dated 23.12.2002 acquitted both the accused of the offence under Section 3 02/34 IPC. Aggrieved, the State has filed this appeal after obtaining leave unde r the provisions of Section 378 (3) CrPC. 4. A consideration of the materials on record would go to show that the case of the prosecution rests on the dying declaration claimed to have been made by the deceased before P.W.1, Jahiruddin Sk; P.W.2, Ismailuddin Sk.; P.W.3 , Hafezur Rahman; P.W.4, Abul Hussain; P.W.5, Abdul Karim Sk and P.W.6, Sahajaha n Ali as well as the dying declaration recorded by P.W.11, Dr. Rabindra Sarma in the Dhubri Civil Hospital on 30.5.97. The said document was exhibited as Exhibi t-6 in the case. We have perused the evidence of P.W.1,2,3,4,5 and 6 as also P.W .11. We have also read and considered the document exhibited by the prosecution as Exhibit-6 in the case. 5. It appears that through the Investigating Officer of the case i. e. P.W.10 the defence has been able to contradict P.W.1,2,3,4 and 5 with regard to their previous statements recorded under Section 161 CrPC wherein they had no t mentioned to the Investigating Officer anything about the dying declaration al legedly made by the deceased before them. The above contradiction has been consi dered by the learned Trial Court to be very material in adjudging the veracity o f the prosecution version as unfolded by the aforesaid witnesses i.e. P.W.1,2,3, 4 and 5. A reading of the evidence of the Investigating Officer (P.W.10) would g o to show that the defence had indeed succeeded in proving the aforesaid contrad iction. This would also result in a situation where the prosecution witnesses ha d narrated the story of the oral dying declaration of the deceased for the first time in Court. In so far as P.W.6 is concerned, no such contradiction has been proved. However, P.W.6 having stated that the oral dying declaration of the dece ased was made before all the witnesses at more or less the same time, a serious doubt would arise in our mind as to whether on the version of P.W.6 alone, the a ccused/ respondents should be held liable to be convicted. 6. The prosecution in the present case has also relied on Exhibit-6 i.e. the dying declaration which is claimed to have been recorded by P.W.11, Dr . Rabindra Sarma who had attended to the deceased in the Civil Hospital at Dhubr i. The said dying declaration is dated 30.5.97. P.W.11 in his deposition had adm itted that he had not handed over the dying declaration to the Investigating Off icer and the same was with him all along until the same was produced in the Cour t at the instance or the prosecution. That apart, a scrutiny of the said documen t (Exhibit-6) would indicate that the names of the two accused/ respondents have been recorded in the said statement after striking out the names of two other p ersons as originally recorded. Though one Ashalata Das was an attesting witness to the document (Exhibit-6) as executed on 30.5.97, the insertion of the names o f the accused/ respondents has not been attested by any witness. 7. That apart, in the FIR filed by P.W.1 it was mentioned that the deceased while returning from the house of his father-in-law had almost reached his own house when at a distance of about 200 yards he was attacked and killed b y the accused persons. P.W.1 in his deposition, however, has narrated a differen t story, namely, that at the time of the occurrence the deceased was in the hous e along with him. The other prosecution witnesses have introduced yet another st ory, namely, that the deceased had gone to the backside of the house to answer t he call of the nature when he was put to death by the accused persons. All the a foresaid facts borne out by the evidence on record make the prosecution version highly unreliable. While considering an order of acquittal this Court would neve r supplant its views in place of those of the learned Trial Court. Jurisdiction in an appeal against acquittal is exercised primarily from the yardstick as to w hether the view taken by the Trial Court is a possible view and if such a view i s possible, even if the appellate Court is to disagree with the said view, the o rder of acquittal is to be maintained. 8. Adopting the aforesaid settled principle of law and for the reas ons recorded by us, we find no infirmity in the judgment and order dated 23.12.2 002 passed by the learned Sessions Judge, Dhubri in Sessions Case No. 93/98 acqu itting the accused/ respondents. 9. Consequently, the appeal filed by the State is dismissed and the judgment and order dated 23.12.2002 passed by the learned Trial Court in Sessio ns Case No. 93/98 is affirmed.