High Court · 2012

with law. The learned Additional Sessions Judge after committal of the case and o 10. n hearing the arguments, advanced by the learned counsel for the parties, framed charge under section 326/302 IPC against the accused person and charges, so fra med, on being read over and explained to him to the accused person, he pleaded not guilty and claimed to be tried. 11. During trial, the prosecution side has examined as many as 12 wi tnesses including one Court witness. Statement of the accused person was recorde d. Accused plea was of denial. However, on being required, he did not adduce any evidence on his own.

12. On the conclusion of trial and on hearing the arguments advanced by the learned counsel for the parties, the trial court convicted the accused/appellant under section 324/302 IPC and sentence him to punishment as aforesaid. It is t hat judgment, which has been, assailed herein this appeal. 13. Opening up argument on behalf of the accused/appellant, the learned coun sel Mr. SC Biswas has contended that the evidence rendered by the prime prosecut ion witness namely, Sarbeswar Nath (PW-2) was riddled with enormous contradictio n. The other witnesses, who are summoned to support the prosecution case, have e ither become hostile to the prosecution or they could lend any meaningful suppor t to the prosecution case. 14. However, the learned trial court ignored all those serious infirmities i n the prosecution case and came to the conclusion that prosecution has proved th e charge under section 302 and 324 IPC against the accused person made all reaso nable doubt and convicted him as stated above and sentenced him to punishment a s aforesaid. Being so, judgment rendered by the trial court is unsustainable in law and as such, liable to be set aside. 15. On the other hand, the learned Public Prosecutor appearing for the State arduously contends that evidence rendered by one of the victims, namely, Sri Sa rbeswar Nath is confidence inspiring, same being consistent with the prosecuti on story told and retold during the course of investigation as well as during th e course of trial. 16. Such evidence unmistakably demonstrates that the accused was the man who attacked the PW 2 as well as the deceased at the place of occurrence on the mor ning aforesaid which occasioned the death of deceased before being provided with any treatment. He, therefore, urges this court to dismiss the appeal affirming the judgment rendered by the trial court. We have given our anxious consideration to the arguments, advanc 17. ed by the learned counsel for the parties. However, before appreciating the riva l submissions on merit, we find it necessary to have a brief review of the evide nce on record and for this purpose, the evidence rendered by the Doctor is first taken up for consideration.

18. The doctor who conducted the post-mortem examined on the cadaver of one Hemanta Kumar Nath was Dr. Shyama Saikia and was examined as PW-9. According to him on 26.4.1994, he was posted as Medical Officer, Tezpur Civil Hospital. On th at day, on police requisition, he conducted the post-mortem examination on the b ody of one Hemanta Kr. Nath and his findings are as bellows: EXTERNAL APPEARANCE: Healthy adult. Rigor Mortis present. Pleeding and haematoma on the right ey. Other natural orifices normal. WOUNDS: 1.Cut injury over the right arm at the level of wrist joint. Obliquely the thumb is intact and other fingers are missing. Haematoma is present at the site of in juries. 2.Cut injury over neck on the left side measuring about 10cm X 5 cmX 6 cm. The i njuries cut through veins, arteries and nerves around the area. The main carotid artery is cut. Haematoma and bleeding seen around the cut area. Other organs, mainly, throrax, abdomen and found healthy. OPINION: The cause of death, in my opinion, was due to injuries described, bleedi ng and shock.

19. Ext. 3 is the post mortem of the doctor and Ext.3 (1) is his signature. In his cross-examination, he had admitted that in his report, it has not been mentioned that there was a cut injury on the neck of the deceased. Doctor Mahesh Chetri who examined Sri Sarbeswar at Civil Hospita 20. l on 26.4.1994 was examined as PW-10. According to him, on the date aforesaid, h e was posted at Kanaklata Civil Hospital. On that day, he examined Sri Sarbeswar Nath and his findings are as follows: In his cross-examination, he has stated that which injury he had detecte (cid:28)One sharp cut injury on left upper arm laterally. Size - 4 (cid:29) X 1 (cid:29) X 1 (cid:28). The above injury was simple, fresh and caused by sharp weapon. Ext. 4 is the photocopy of the injury report and Ext.4 is the doctor’s signature . 21. d on the person aforesaid may be caused for fall on sharp substance. 22. So situated, let us consider the testimony of prime prosecution witness who is none other than Sarbeswar Nath ( PW-2). According to him, on 26.4 .1994 at about 9 am, he and his brother were proceeding towards Tezpur. The mome nt they reached the gateway, the accused person, he suddenly appeared before the n and attacked his brother Hemanta Nath with a dao. He attacked him with the blu nt side of the dao. 23. Being so attacked, he fell down on the ground and lost his sense momentarily. Seeing his brother being attacked by the accused person, he embrac ed him in order to save his brother from the assault of the accused person. In t hat process, the accused also planted a dao blow on his left shoulder inflicting a cut injury on such part of his body.

24. In the meantime, he saw his younger brother running towards the house of Jiten Saikia nearby. The accused too chased him upto the house of Saikia. Littl e thereafter, he saw the accused returning from the house of Jiten Saikia with a blood stained dao in his hand. By that time, one Chandan Bora arrived there. He as well as Sri Chandan Bora immediately proceeded to the house of Jiten Saikia and found his brother lying in the compound of Jiten Saikia in an injured con dition. 25. He saw a cut wound on his neck. He also found some fingers of his hand b eing severed. People gathered there took necessary arrangement for taking the v ictims to the nearby hospital wherefrom they were taken to Kanaklata Civil Hospi tal, Tezpur . By the time, his brother was taken to Civil Hospital , he expired. But PW-2 remained in Hospital for about nine days.

26. On coming to know about the alleged incident, his father lodged an FIR. In his cross-examination, he has stated that that the house of Jiten Saikia is s ituated at a distance of 100 yard from the place of occurrence ; that many peopl e were there when the alleged incident occurred and that on being attacked, he and his brother started running in opposite direction. The suggestion that he did not disclose before the police that the accus 27. ed chased his brother upto the house of Jiten Saikia with a dao in his hand and that he saw the accused person returning from the house of Sri Jiten Saikia with a dao in his hand were denied by him.

28. PW-3 is Chandan Bora. According to PW-3, on the day of incident at about 9 am, he was proceeding towards his office. In the meantime, he heard hue and c ry at the place of occurrence . He immediately rushed to the place of occurrence As he reached the gateway of the house of accused Jiten Saikia, he saw the accu sed coming out of the house of Jiten Said with a blood stained dao in his hand. When he enquired the accused as to what has gone wrong, he replied that he cut a nd injured someone and advised him to see it for himself.

29. Immediately thereafter, he saw the accused Hemanta lying injured in the compound of Jiten Saikia with his fingers chopped off . There was profuse bleedi ng from his wound. He also found Sarbeswar Nathin in an injured condition at suc h place. Injured persons were then taken to Army Hospital where Hemanta was decl ared to be dead. They were, however, brought to Civil Hospital. In the meantime, police came there and conducted inquest on the dead body and prepared report in that connection. The inquest report was proved as Exhibit-1.

30. In his cross-examination, he had admitted that he has not seen the actua l assault but then he clarified that seeing the people rushing towards the place of occurrence, he came there and found Hemanta lying in the courtyard of Jiten Saikia. In the cross-examination, he further states that Jiten Saikia was not in his house at that time . He, however , denied the suggestion that he did not st ate before the police that accused told him that he cut and injured someone and advised him to such place to see it himself. 31. PW-4 Smti Purabi Saikia is the wife of Jiten Saikia. According to her, o n the fateful day,at the time relevant, she was sleeping in her house with her b aby . While she was so sleeping in her house, she heard hue and cry. Somebody to ld that a man was killed for which she came out of her house and found Hemanta lying in an injured condition in their backside. Having found Hemanta in such a condition, she lost her consciousness. This witness was declared hostile by the prosecution. 32. PW-1 is Smti Runu Devi. She is heard saying that Hemanta Nath, the decease d was her husband. On the fateful day, her husband and his brother Shri Sarbeswa r Nath left their house for Tezpur. They left for Tezpur at about 9 am. Little t hereafter, one Ritu Bora came there and informed her that the accused assaulted her husband and Sarbeswar. Hearing it, she tried to go to the place where the in cident had occurred. However, her family members prevented her from going to suc h place. 33. Later on, she came to know that her husband expired on way to hospital. Sh e also came to know that her husband was hacked in the backyard of the house of Jiten Saikia. In that incident, Sarbeswar sustained injury. In her cross- examin ation, she has admitted that she did not witness the incident in question. 34. PW-5 Sri Mamu Saikia has stated that on the fateful day, in the morning, h e saw Hemanta lying in an injured condition on the road. She came to know from t he people gathered there that accused cut and injured Hemanta. She was declared hostile. She did not find witness Sarbeswar Nath at the place of occurrence at t hat time. 35. PW-6 is Sri Gajen Saikia . He deposes that on the fateful day, in the morn ing, he heard hue and cry in front of the house of the accused person. He immedi ately came out of the house and found PW-2 Sri Sarbeswar Nath in an injured cond ition. He also saw the accused chasing Hemanta upto the compound of the house of Jiten Saikia. Later on, when he went to the compound of Jiten Saikia, he found Hemanta lying there in an injured condition. 36. He was asking for water but moment later, he lost his consciousness. PW-6 was also declared hostile. PW-7 Jiban Neog and PW-8 Ram Kalita Singh are the wit nesses to the inquest, done on the dead body at Civil Hospital,Tezpur on 26.4.19 94. They proved the inquest report as Exhibit-2.They , particularly , PW7 depose s that they put their signature on the inquest report at Civil hospital , Tezpur .

37. Sri P.Bora, SI of police, was the investigating officer of the case unde r consideration and he was examined as PW 11. According to him, on 26.4.94, when he was in-charge of Bihaguri police out post, he received the FIR (Ext 5) from one Jitan Kr Nath. After making necessary GD entry, he forwarded the same to the O/C Tezpur P.S. for registering a case in accordance with law. In due course, h e was entrusted with the duty of investigation of the case . 38. In course of investigation, he visited the place of occurrence and found one severed hand of human being on which he held an inquest. He also came to kn ow that injured had already been taken to hospital. From the place of occurrence , he seized a dao on the strength of seizure list Ext.6. He also received a pai r of blackish red blood stained googles , one blood stained pass book pertainin g to the wife of the deceased, one blood socked bank withdrawal form from the pl ace of occurrence which he seized on the strength of seizure list Ext.7. 39. The dao, he seized, was proved as Material Ext.1. However, before he could complete the investigation, he was transferred for which remaining part of the investigation was done by one Shri. N. Das, S.I. of Police. In his cross examina tion, he has stated that PW 2 did not tell him that he saw the accused chasing h is brother with a dao in his hand, that he saw the accused coming out of the hou se of one Jitan Saikia with a blood stained dao in his hand and that his brother was assaulted on his neck by the accused person.

40. Shri. H.K.Bora, Inspector of Police(retired) was examined as CW 1. Accor ding to him, on 26.4.99, he was posted as SI of police at Tezpur Police Station and on that day, he held inquest on the dead body of Hemanta Nath at Civil Hospi tal, Tezpur and in that connection, he prepared a report which was proved as Ext .2. In his cross examination he stated that he conducted the inquest on the inst ruction of the then O/C, Tezpur Police Station.

41. Above being the evidence on record, let us see how far such evidence mak es out the charge brought against the accused person. We have already found that the prime prosecution witnesses of this case is Sri Sharbeswar Nath (PW 2). He has categorically stated that on the fateful morning he and his brother since d eceased was proceeding through the road in connection with there visit to Tezpur Town. When they arrived at the get way of the house of the accused person, the accused appeared before them all of a sudden arm with a dao and started attackin g his brother Hemanta Kr Nath with a dao in his hand. 42. Having found his brother being attacking by the accused person, he tried to save him from the assault of the accused person. However, the accused also a ssaulted him on his left shoulder. Being attacked by the accused person, his bro ther started to run towards the house of one Sri Jiten Saikia situated at a plac e not far away from the get way of the accused person. However, the accused foll owed him upto the house of Jiten Saikia. A little later, he saw the accursed ret urning from the house of Sri Jitan Saikia still wielding a blood stained dao in his hand. 43. The evidence rendered by PW 2 finds corroboration from the testi mony rendered by PW 3 and PW 6 since these two PWs are found saying that they ha ve found Hamenta lying in an injured condition in the courtyard of Jatin Saikia. The evidence of PW 3 is even more revealing since he is also found saying that having come to the place of occurrence on hearing hue and cry there-from, he fou nd the accused coming out from the house of Sri Jiten Saikia with a blood staine d dao in his hand. On the other hand, PW 6 is found saying that he saw the accus ed chasing Hamenta upto the house of Jitan Saikia. 44. When the evidence of PW 2, PW 3 and PW 6 are read together, there cannot be any escape from the conclusion that the accused attacked the deceased and PW 2 in front of his house with dao and injured both of them and thereafter he cha sed the deceased upto the residence of Jatin Saikia where he again attacked the former with dao injuring him quite grievously. Their evidence also reveals that while deceased sustained cut on his neck and also had his fingers being severed due to such assault PW 2 sustained wounds on his shoulder in that process. 45. The above revelations, particularly the revelation that deceased sustai ned cut wounds on the neck and fingers and that PW 2 sustained cut wound on his shoulder have found further support from the testimony of Dr. Shyama Saikia (PW 9) as well as Dr. Mohesh Chetri (PW 10) and Ext.2 Ext.3 and Ext.4, inquest r eport, Post Mortem Report and injury report respectively - since--- Dr. Shyama S aikia too found cut wound on the neck of the deceased and also noticed a cut wou nd on right arm with some his fingers in the same hand being severed . 46. It is also worth noting that during the course of investigation, Police seized a dao from the residence of the accused person on the strength of seizur e list Ext.6 which was proved as Mat. Ext.1. This evidence remains totally uncha llenged. Seizure of dao from the residence of the accused person, and that too, on the date of incident itself, in the facts and circumstances of the case, unde r consideration, has clearly established that Mat. Ext.1 was the dao used in com mission with the crime under consideration. The fact that Doctors opined that wo unds found in the body of the deceased as well as on PW2 were caused by sharp ob ject doubly affirm that Mat. Ext.1 was the instrument used the commission of cri me aforesaid. 47. In view of what emerges from our forgoing discussion we are of the opini on that prosecution has clearly established that on the fateful morning the accu sed mercilessly assaulted the deceased in front of the house as well as in the compound of one Sri Jitan Saikia with a dao which occasioned his death same day. Such evidence also establishes that in the course of same incident, the accused also assaulted the PW 2 with the same dao inflicting injuriy on his upper arm. 48. In order to fortify more and more the charge brought against the accused person, the prosecution has also relied on an extra judicial confession reporte dly made by the accused person and in that connection it has pressed into servic e the testimony of PW 3. PW 3 in his evidence has stated that when he arrived at the place of occurrence, he saw the accused coming out of compound of Sri Jitan Saikia with a dao in his hand.

49. When he enquired him as to what had gone wrong , the accused told that h e cut and injured someone in the compound of Sri Jitan Saikia and advised him to go there and to see such incident for himself. As stated above, on coming to th e compound of the aforesaid Jitan Saikia, PW 3 found Hemanta lying there in an i njured condition with blood flowing from the wounds on his body. The above evide nce also remains totally undisturbed. 50. It clearly shows that the accused admitted hit and injured the deceased at the compound of Jitan Saikia which occasioned his death some time thereafter. On our perusal of testimony of PW 3, we have also found that the accused made s uch statement implicating himself with the crime under consideration voluntarily . More importantly, as stated above, such confession is found to be truthful as well. Such confession which is voluntary and which is truthful confirms more and more that the claims of the prosecution made in the case under consideration. The prosecution case has, however, come under challenge on the grounds m

51. ore than one. It has been contended that:- i) edly occurred was not examined. ii) ularly PW 2. iii) One Jiten Saikia in whose house the main parts of the incident has alleg There is some serious contradictions in the testimony rendered by partic The most of the witnesses calls to support the prosecution was hostile, particularly, PW 4, PW 5 and PW 6 turned hostile to the prosecution in spite of above there evidence was relied by the prosecution.

52. Now, let us say if such argument, advanced from the side of the deceased is found tenable in law. Coming to the first allegation above, I have found tha t it is true that witness, Jiten Saikia, in whose house main drama was enacted o n 26.04.1996, was not examined as witness. But there is clear evidence to show t hat on the day of occurrence, Jiten Saikia was not in his house. Being so, non e xamination of shri Saikia has no bearing on the case under consideration. 53. It is also contended that some of the witnesses from the prosecution sid e turned hostile. Since they refused to support the prosecution case, the prosec ution case got weaken to a great extent which makes the entire prosecution claim s unreliable. But this aspect was totally ignored by the Trial Court in coming to the conclusion that the accused/appellant has committed the offence, he was c harged with. Learned counsel for the appellant, therefore, urges this court to s et aside the judgment of the Trial Court. 54. We have found that such an argument too is without much substance. It is true that PW 4, PW 5 and PW 6 turned hostile. But law on the testimony of hosti le witnesses is well settled. In that connection, we can profitably peruse the d ecision of the Supreme Court in the case of Bhajju Alias Karan Singh Vs State of Madhya Pradesh, reported in (2012)4 SCC 327. In the case aforesaid the Supreme Court held as follows : (cid:28)Para 36. It is settled law that the evidence of hostile witnesses can also be r elied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as wa shed off the records, it remains admissible in trial and there is no legal bar t o base the conviction of the accused upon such testimony, if corroborated by oth er reliable evidence. Section 154 of the Evidence Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to hi m which might be put in cross-examination by the adverse party (cid:29).