High Court
Case Details
Crl.A. 113/2008 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH Accused Birju Chowtal faced trial for having allegedly committed offences punish able under Sections 449, 436 and 302 IPC and, following his trial, he stands con victed, under Section 302 IPC, by judgment and order, dated 07.05.2008, passed, in Sessions Case No. 54(M) of 2006, by the learned Additional Sessions Judge, FT C, No.1, Margherita, and sentenced to suffer imprisonment for life and pay fine of Rs.5,000/- and, in default of payment of fine, suffer rigorous imprisonment f or a period of two months. The case of the prosecution may, in brief, be described as under: 2. (i) On 17.01.95, one Sitaram Majhi (since deceased) lodged an Ejahar, at Mar gherita Police Station, alleging, inter alia, that on 16.01.95, at about 6.30 pm , accused Birju Chowtal knocked the door of the informant’s dwelling house and, as soon as the informant’s mother opened the door, the accused, by means of a da o, inflicted injuries on informant’s mother, Naha Majhi, causing grievous injuri es on her person and, on witnessing the occurrence, when the informant, in order to save his mother, moved forward, accused, Birju Chowtal, assaulted the inform ant, too, by means of the said dao on the nape of his neck causing injury on the informant’s person and, thereafter, the accused, Birju Chowtal, set fire to the granary of the informant turning the said granary into the ashes and that at th e time of the said occurrence, accused Birju was accompanied by Jiban Chowtal (s ince absconder). (ii)
Facts
Based on the Ejahar and treating the same as First Information Report (i n short, FIR), Margherita Police Station Case No.12/1995, under Sections 448/438 /326 IPC, was registered against accused Birju Chowtal and Jiban Chowtal. (iii) The injured was moved to Civil Hospital, Margherita, on the very night o f the occurrence; but, as a result of excessive bleeding from the cut injury suf fered by her on the both sides of her face from the hairline to the neck, Naha M ajhi died and, on her death, on 17.01.1995, Section 302 IPC was added to the cas e aforementioned. 3. During investigation, police held inquest over the said dead body, which was also subjected to post mortem examination, and, on completion of investigat ion, a charge-sheet was laid against both the accused, namely, Birju Chowtal and Jiban Chowtal, showing them as absconders seeking their prosecution under Secti ons 448, 436, 323 and 302 read with Section 34 IPC. 4. Before, however, the trial could commence, the informant, Sitaram Majhi, died and, on being apprehended by police, accused Birju Chowtal was put to tria At the trial, when charges, under Sections 449, 436 and 302 IPC, were fr l. 5. amed against the accused, he pleaded not guilty thereto. In support of their case, prosecution examined altogether 7 (seven) witn 6. esses. The accused, Birju Chowtal, was, then, examined under Section 313 Cr.PC a nd, in his examination aforementioned, the accused, Birju Chowtal, denied that h e had committed the offence, which was alleged to have been committed by him, hi s case being that of denial. No evidence was adduced by the defence. 7. Having, however, found the accused, Birju Chowtal, guilty of the offence under Section 302 IPC, the learned trial Court convicted him accordingly and pa ssed sentence against him as mentioned above. Aggrieved by his conviction and th e sentence passed against him, the accused, as a convicted person, has preferred this appeal. So far as the charges, under Sections 449 and 436 of the IPC are c oncerned, the learned trial Court made no comments and has not observed anything to show as to whether accused-appellant has been found guilty of the offences u nder Sections 449 and 436 of the IPC or not. Considering, however, the fact that the accused-appellant, Birju Chowtal, has not been convicted of the offences, u nder Sections 449 and 436 IPC, the implication is that he has been held not guil ty of the offences aforementioned and has accordingly been acquitted. As against such an acquittal, no appeal has been preferred by the State.
Legal Reasoning
Bearing in mind what is indicated above, when we come to the evidence of Dr. R. Chaliha (PW1), we find that according to him, on 18.01.1995, Dr. N.N. Go goi, Associate Professor, Forensic Medicine, Assam Medical College and Hospital, Dibrugarh, with whose handwriting and signature he (PW1) PW1 was familiar, had conducted post mortem examination on the dead body of Naha Majhi and his finding s were as follows: (cid:28)Injuries : (1) Incised wound in the middle part of the forehead measuring 8x1 c m and cutting the bone, (2) An incised wound in the right parietal scalp measuring 6x1 cm, bone was cut, (3) Incised wound in the left forehead measuring 4x1 cm, scalp deep, (4) Incised wound over the left cheek measuring 6x1 cm, muscle deep, The thoracic organs were healthy. The abdominal organs were healthy. Stomach was healthy and empty. In the cranium and spinal canal, injuries to the scalp and skull are already des cribed. Vertebrae is healthy, Membrane are congested. Subdural hemorrhage is pre sent over the surface of the brain. Brain is congested and edematous. (cid:29) 12. In the opinion of the doctor (PW1), death, in the present case, was due to coma, which was resulted from the ante mortem injuries, which had been caused by sharp cutting weapon, the injuries being homicidal in nature. 13. In his cross-examination, PW1 has clarified that the combined effect of all the injuries, which the deceased, Naha Majhi, had sustained, resulted into h er death. 14. The above findings, as regard the injuries found on the dead body of Nah a Majhi, the cause of death and the nature of weapon used went completely undisp uted by the defence inasmuch as the defence declined to cross-examine PW1. This apart, we, too, do not notice anything inherently incorrect or improbable in the evidence given by PW1. We, therefore, hold that Naha Majhi sustained injuries a s described by PW1 and due to coma, which resulted from the injuries so sustaine d, that Naha Majhi died and that her death was, thus, homicidal. Bearing in mind the medical evidence on record, which we have discussed 15. above, when we turn to the evidence of PW2 (Barka Majhi), we notice that accordi ng to this witness, who is son of deceased Naha Majhi, accused went to assault h is brother, Dhan Majhi, but when he did not find Dhan, he hacked his (PW2’s) mot her, at about 5 pm, on the day of the occurrence and that he (PW2) learnt about the occurrence from his elder brother, Sitaram Majhi, who had taken the injured, Naha Majhi, to Civil Hospital, Margherita. 16. Considering the fact that Sitaram Majhi died and could not be examined a s a witness, the evidence given by PW2 as to what had been reported to him (PW2) by Sitaram Majhi, would be nothing but hearsay and inadmissible in evidence. We , therefore, keep the evidence, so given by PW2, wholly excluded from the purvie w of our consideration. 17. What is, however, of utmost importance to note, while considering the ev idence of PW2, is that he has deposed that he was told by his mother, (i.e., inj ured Naha Majhi), that Birju Chowtal had cut her and his (PW2’s) elder brother, Sitaram, had witnessed the incident. It is further in the evidence of PW2 that S itaram Majhi had sustained injury on the nape of his neck and Sitaram Majhi died after six months of the occurrence. It may also be pointed out that PW2 has deposed that they took their inj 18. ured mother to Margherita thana and that on the same day, their mother died and Sitaram Majhi (since deceased) lodged an Ejahar with the police. 19. Though PW2 was put to cross-examination by the defence, there was virtua lly no cross-examination on the evidence given by PW2 as regards the fact that h is mother had told him that Birju Chowtal had cut her. The evidence of PW2 remai ns, admittedly, unshaken as regards his evidence given to the effect that his mo ther had told him that Birju Chowtal had cut her. 20. From the above unchallenged and undisturbed evidence of PW2, it clearly transpires that the injured, before her death, had told her son (PW2) that it wa s accused Birju Chowtal, who had hacked her. 21. Lending support to the above evidence of PW2, the Investigating Officer (PW7) has deposed that on 16.01.95, Sitaram Majhi came to Margherita thana with his injured mother carrying her in a thela (handcart) and stated that Birju Chow tal, of the same locality, had assaulted his mother by a dao and, accordingly, G .D. Entry No.366, dated 16.01.95, was recorded and the injured was, immediately, sent to Civil Hospital, Margherita, for medical examination and treatment and, from the said hospital, the injured was shifted to Coal India Ltd. Hospital, Mar gherita. 22. It is in the evidence of PW7 that the injured was found unconscious and the doctor was requested to record her dying declaration if the injured regained her senses and, then, he (PW7) visited the place of occurrence. It is the furth er evidence of PW7 that on the next day, at about 8 A.M., when an Ejahar was for mally lodged at the said Police Station by Sitaram Majhi (since deceased), a cas e was registered and investigation was conducted. It is of utmost importance to note, in the evidence of PW7, that at the 23. place of occurrence, the granary of the informant was found gutted and though a search was conducted for accused Birju Chowtal and Jiban Chowtal, Birju Chowtal remained untraceable. From the cross-examination of PW7, nothing significant was elicited to s 24. how that the evidence of PW2, that his mother had made an oral dying declaration before she succumbed to death naming the accused-appellant, Birju Chowtal, as h er assailant, was untrue, incorrect or false. 25. So far as PW4 is concerned, he held inquest on the dead body of Naha Maj hi. Similarly, so far as PW5 is concerned, he was reported about the occurrence by Sitaram Majhi. 26. What is, however, important to note, in the evidence of PW5, is that on being informed about the occurrence of assault on his mother by Sitaram Majhi, P W5 went to the house of Naha Majhi and he found the house of Naha Majhi burnt to ashes. PW5 has further deposed that Naha Majhi was, in the meanwhile, taken to hospital and she died on the very same day. 27. The evidence of PW5 could not be shaken by the defence. Hence, though the evidence of PW5 as to what had been reported to him (PW5) by Sitaram Majhi r emains hearsay and inadmissible in evidence, his evidence clearly shows that the house of the deceased was found, on the night of the occurrence, burnt to ashes . 28. What emerges from the above discussion is that according to the unshaken evidence of PW2, an oral dying declaration was made by his mother to the effect that it was the accused-appellant, Birju Chowtal, who had hacked her by means o f a dao, and, as we have already noticed and pointed out above, the assertion of PW2 that his mother had made the said oral dying declaration was not even chall enged by the prosecution. 29. It is well settled that an oral dying declaration is admissible in evide nce and if a dying declaration is found truthful and reliable, the same can be m ade basis for conviction. 30. In the case at hand, the dying declaration, which the prosecution places reliance on, was an oral dying declaration and there is nothing in the evidence on record to show that when the dying declaration was made to PW2 by the injure d, she (Naha Majhi) was incapable of speaking. No such suggestion has ever been offered to PW2 by the defence. While considering the question of dying declaration, one may refer to Ku 31. ndula Bala Subramanyam Vs. State of Andhra Pradesh, reported in (1993) 2 SCC 684 , wherein the Supreme Court has observed as under: (cid:28)Section 32(1) of the Evidence Act is an exception to the general rule that hear say evidence is not admissible evidence and unless evidence is tested by cross-e xamination, it is not credit-worthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which re sult in his death, in cases in which the cause of that person’s death comes into question, such a statement, oral or in writing, made by the deceased to the wit ness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration m ade by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of i mpending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of eviden ce, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same pas ses the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declar ation is true and free from any embellishment such a dying declaration, by itsel f, can be sufficient for recording conviction even without looking for any corro boration. (cid:29) 32. In Uka Ram Vs. State of Rajasthan, reported in (2001) 5 SCC 254, the Sup reme Court, while dealing with the principle on which dying declarations are adm itted in evidence, has held as under: (cid:28)The principle on which the dying declarations are admitted in evidence is based upon the legal maxim nemo moriturus praesumitur mentire, i.e., a man will not m eet his Maker with a lie in his mouth. It has always to be kept in mind that tho ugh a dying declaration is entitled great weight, yet it is worthwhile to note t hat as the maker of the statement is not subjected to cross-examination, it is e ssential for the court to insist that the dying declaration should b4e or such n ature as to inspire full confidence of the court in its correctness. The court i s obliged, to rule out the possibility of the statement being the result of eith er tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was i n a fit state of mind to make the statement. Once the court is satisfied that th e dying declaration was true, voluntary and not influenced by any extraneous con sideration, it can base its conviction without any further corroboration as a ru le requiring corroboration is not a rule of law but only a rule of prudence. (cid:29) Because of what have been discussed and pointed out above, there is no r 33. eason to doubt the veracity of the evidence of PW2 and, if his evidence is belie ved, and we see every reason to believe, his evidence proves, beyond any pale of doubt, that it was the accused-appellant, Birju Chowtal, who had assaulted Naha Majhi by means of a dao and caused her death. The weapon, which the accused use d, was as lethal as dao, the part of the body, selected by the accused for causi ng assault was as vital as head and, coupled with this, the force with which the blows were dealt with are not merely indicative of the fact, but are prove of t he fact that the accused-appellant intended nothing less than the death of Naha Majhi, a helpless woman. 34. In the face of the evidence on record and the circumstances, as indicate d above, we fully agree with the conclusion, reached by the learned trial Court, that the evidence on record prove, beyond reasonable doubt, that Naha Majhi had been put to death intentionally by the accused-appellant, Birju Chowtal, and th ereby the accused-appellant committed the offence of murder punishable under Sec tion 302 IPC. 35. In the result and for the reasons discussed above, we do not find any re ason calling for interference with the finding of guilt reached by the learned t rial Court and/or the sentence passed against the accused-appellant. This appeal , therefore, fails and the same shall accordingly stand dismissed. 36. stance rendered to the Court. 37. Let the Amicus Curiae be paid a sum of Rs. 5,000/- for her valuable assi Send back the LCR.
Arguments
8. We have heard Mr. R. C. Paul, learned counsel, for the appellant. We hav e also heard Mrs. A. Devi, learned counsel, who has appeared as amicus curiae, a nd Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 9. While considering the present appeal, we may point out that PW3, Dr. Ban i Saikia, who had been serving, at the relevant point of time, at Civil Hospital , Margherita, has deposed that the said hospital received, on 16.01.1995, at 9.1 0 pm, Naha Majhi, in injured condition, for examination and treatment and also f or recording her dying declaration, but her dying declaration could not be recor ded as her condition was serious and the injured was, therefore, referred to the Coal India Ltd Hospital, Margherita, for better treatment. 10. The evidence of the doctor (PW3) has gone undisputed by the defence. Thu s, the undisputed evidence of PW3 clearly proves that Naha Majhi was brought to the Civil Hospital, Margherita, on the very day of the occurrence, i.e., on 16.0 1.1995, at 9.10 pm, in a seriously injured condition and though police had reque sted that dying declaration of the injured be recorded, her dying declaration co uld not be recorded due to her serious condition. 11.