High Court
Case Details
Crl.A. 83/2009 BEFORE HON’BLE MR.JUSTICE T. VAIPHEI HON’BLE MR. JUSTICE M.R. PATHAK (T. Vaiphei, J) JUDGMENT AND ORDER 1. This criminal appeal is directed against the judgment dated 17-4-2009 pa ssed by the learned Sessions Judge, Sivsagar, Assam convicting the appellant und er Section 302 IPC and sentencing him to undergo life imprisonment with a fine o f ‘1,000/- and, in default thereof, to suffer rigorous imprisonment for three ye ars.
Facts
2. The facts giving rise to this appeal may be noticed immediately. Accordi ng to the prosecution, on 30-6-2006, an FIR was lodged by one Mantu Chetia with the Nazira Police Station alleging that on that day at about 8-30 AM, the appell ant, who is his brother-in-law, had done to death his friend, Prasanta Barho ( (cid:28)t he deceased (cid:29)) in the bedroom of his (Mantu) house by means of dao while both of them were on a visit to his house. On receipt of the FIR, the Officer-in-harge o f Nazira P.S. registered a regular case being Nazira P.S. Case No. 74/2006 U/s 3 02 IPC and thereafter took up investigation of the case by himself. After invest igation of the case, the police charge-sheeted the appellant under Section 302 I PC to stand the trial. On commitment, the learned Sessions Judge framed the char ge against the appellant U/s 302 IPC, who pleaded not guilty to the charge and c laimed to be tried. In the course of trial, the prosecution examined as many as eleven witnesses and exhibited documents and materials to bring home the charge against the appellant. After prosecution case was closed, the appellant was exam ined under Section 313, CrPC, who denied all the allegations. On the contrary, h e pleaded that he is innocent and that he had gone to the house of his father-in -law (the deceased) to bring some herbal medicines when the neighbours of the de ceased, out of suspicion, caught and tied him to a tree and implicated him in th e case. No evidence was, however, adduced by him in his defence. After hearing t he learned Public Prosecutor and the learned defence counsel, the trial court pa ssed the impugned judgment of conviction and sentence.
Legal Reasoning
11. As already noted, PW 2 and PW 3 have been declared hostile by the pros ecution. However, merely because a witness is declared hostile, his evidence can not be discarded: such evidence has to be closely examined and if corroborated b y other available evidence, it has to be accepted. The legal position is reitera ted by the Apex Court in State of Rajasthan v. Bhawani, (2003) 7 SCC 291 in the following manner: (cid:28)10. The fact that the witness was declared hostile by the Court at the requ est of the prosecuting counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the wi tness. But the court at least has to be aware that prima facie, a witness who ma kes different statements at different times has no regard for truth. His evidenc e has to be read and considered as a whole with a view to find out whether any w eight should be attached to the same. The court should be slow to act on the tes timony of such a witness and, normally, it should look for corroboration to his evidence. The High Court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution which had been fully establi shed by the testimony of several witnesses, which was of unimpeachable evidence. The approach of the High Court in dealing with the case, to say the least, is w holly fallacious. (cid:29) 12. Appreciating the evidence of PW 2 against the aforesaid legal position, there can be no doubt that her statement that when she left for the nearby pond , both the appellant and the deceased were sitting in their house cannot be assa iled in any manner. Her statement that when she returned home, she found the dec eased lying dead in their bedroom is also quite credible. However, her statement that she found the appellant standing on the back of their house requires close r scrutiny in the light of the evidence of other prosecution witness. PW 1, howe ver, deposed that on reaching home, he found the appellant being tied to a tree in the courtyard of their dwelling house. PW 4, in her deposition, testified tha t when she rushed out of her house just after hearing the shouting of PW 2 calli ng out to her mother-in-law stating that somebody had hacked the deceased, she s aw the appellant running out of the house of PW 1 with a dao in his hand and tha t the neighbours assembled at the place of occurrence and tied the appellant to a tree standing on the courtyard of their house. She, however, admitted that she did not go to the house of PW 1. From her cross-examination, it is in evidence that a pond intervened between her house and the house of PW 1 at a distance of about 300 yards. It is difficult to understand as to how she could identify the appellant running out of the house of PW 1 with a dao in his hand at a distance of some 300 yards where she claimed to be seeing him, more so, when she said tha t she did not go to the house of PW 1. Furthermore, PW 9, who is the IO of the c ase, in his testimony categorically contradicted her statement by stating that s he did not state to him that she saw the appellant coming out with a dao in his hand from the bed room of PW 1. Her statement in Court that she saw the appellan t coming out of the house with a dao in his hand is, therefore, a first time sta tement in Court is an improvement/embellishment, which was never stated by her t o the police. In our opinion, such an omission is a material omission amounting to major contradiction, and PW 4 is evidently seeking to make an improvement in the course of her deposition. Under the circumstances, the credibility and the t rustworthiness of PW 4 is highly suspect. 13. This then takes us to the statement of PW 1, who deposed that on reachi ng home, he found the appellant being tied to a tree in the courtyard of their h ouse. He also deposed that when he entered their dwelling house, he found the de ceased lying death on the floor with cut injuries on his neck and back. PW 8, ho wever, testified in his cross-examination that he found the appellant sitting in the house of the elder brother of PW 1, and not at the house of PW 1. He did no t say anything about the appellant being tied to a tree even though he arrived w ith PW 5 who had deposed that the neighbouring people tied the appellant to a tr ee standing outside the house. PW 6, however, deposed that the police arrested t he appellant from the courtyard of the house where the occurrence took place. PW 9, who is the IO of the case, revealed in his cross-examination that he found t he appellant tied to a tree by the public. Moreover, both PW 1 and PW 2 have dis closed, in the course of their respective cross-examinations, that when the inci dent took place, the late Tulsi Chetia, the father of PW 1, was also present at their house and that he could move around. The presence of the father of PW 1 (n ow deceased), who was never examined, has created a new dimension to the case of the prosecution. As already noted, in a case based on circumstantial evidence, the circumstances, taken cumulatively, should form a chain so complete that the is no escape from the conclusion that within all human probability the crime was by the accused and none else. The prosecution did not explain as to why the fat her of PW 1, who was also present at the time of the incident and at the place o f occurrence, was never examined in the course of investigation or in the course of trial. No attempt was made by the prosecution to rule out the possibility of the father of PW 1 the possibility of his committing the murder. This is all th e more important because it is now revealed that it was not only the appellant w ho was last seen together with the deceased but the father of PW 1 was also last seen together with the deceased at the same time and place. Therefore, it is no longer certain that the appellant alone was last seen together with the decease d before his death. 14. Coming now to recovery of the dao (Material Ext. 1), the case of the pro secution is that the same was seized from the possession of the appellant vide t he seizure list at Ext. 3. The seizure was claimed to be witnessed by one Bhagen Gogoi (PW 5) and Dipankar Chetia (PW 6). Earlier, PW 5 had testified that the n eighbouring people tied the appellant outside the house to a standing tree. He a lso deposed that the police seized the dao from the hand of the appellant. Howev er, in his cross-examination, he changed his testimony by stating that the polic e did not seize Mat Ext 1 from the hand of the appellant. PW 6 also deposed in h is examination-in-chief that the police arrived at the place of occurrence and s eized Mat. Ext. 1 from the possession of the appellant. However, in his cross-ex amination, he deposed that Mat. Ext. 1 was seized by the police near the place w here the appellant was tied around a tree. He also admitted in his cross-examina tion that he did not state to the police that the dao was seized out of the poss ession of the appellant. PW 1, who rushed to the place of occurrence just after the incident, admitted in his cross-examination that he did not know wherefrom t he police seized the dao and that when it was seized, it did not contain any blo od stain. PW 8, in his cross-examination, testified that police recovered the da o from above the coop belonging to Montu’s aunt and seized it: the coop was situ ated behind the house which was 2 and half ’nal’ (One ’nal’=8cubits) away from the house of PW 1. The IO of the case (PW9) deposed that he found the appellant tied up to a tree by the public; that he seized the ’kopidao’ (Mat Ext 1) as sho wn to by the appellant, that was after he released him from the public, but admi tted that he did not mention that in the seizure list. Thus, from the evidence o f PWs 5, 6, 8, 9 and 1, it is seen that there was no unanimity among them as to the manner in which and from whom or where the dao was actually seized by the po lice. Moreover, though the dao, which was alleged to have been used for inflicti ng multiple injuries upon the deceased, was seized just after the incident, it, curiously, did not have any blood stain in it. In a case based on purely circums tantial evidence, it is the duty of the prosecution to clinchingly prove that th e weapon of offence was recovered from or at the instance of the accused. In our opinion, the evidence regarding the recovery of the dao from the possession of or at his instance is highly doubtful. True, the appellant in his examination un der Section 313, CrPC gave different versions as to how he was found near the de ad body of the deceased just after the occurrence. Initially, he stated that he was suffering from some disease and had gone to the house of his father-in-law t o have some herbal medicine. But, subsequently, he changed his version by statin g that he went there to enquire about the occurrence and that finding him there, the neighbouring people, out of suspicion, caught him and tied him to a tree. T he law in this behalf is already settled by the Apex Court. If any decision is n ecessary, we cite the decision of the Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. This is what the Apex Court said: (cid:28)The prosecution must stand or fall on its own legs and it cannot derive an y strength from the weakness of the defence. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or s upplied by a court. There is vital difference between an incomplete chain of cir cumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Before a false explanation or false plea is taken by the accused can be used as an additional link to the chai n of circumstantial evidence, the following essential conditions must be satisfi ed: various links in the chain of evidence led by the prosecution have been the said circumstances points to the guilt of the accused with reasonabl (1) satisfactorily proved, (2) e definiteness, and (3) the circumstances is in proximity to the time and situation. In the present case, the High Court has taken a completely wrong view of law in holding that even though the prosecution case may suffer from serious inf irmities, it could be reinforced by additional link in the nature of false defen ce in order to supply the lacuna and has committed a fundamental error of law. S ince two views are clearly possible in the present case, the question of defence being false does not arise and the argument of the High court that the defence was false does not survive. (cid:29) 15. In the instance case, the following circumstances, namely (i) the case o f the prosecution that at the time of occurrence, only the appellant and the dec eased were present at the house of PW 1 is negated by the presence of the late T ulsi Chetia, father of PW 1, who was alive at that time and was at the house: th e prosecution did not adduce any evidence to rule out the possibility of his bei ng the perpetrator of the crime after it has been established that he was also p resent at the place of occurrence at the time of the incident (PW 2 in her cross disclosed that when she returned home from pond, she found her father-in-law si tting in the drawing room and that he could move around); (ii) the case of the p rosecution that immediately after the occurrence, the appellant was seen getting out of the house of PW 1 with a dao in his hand, is disproved by PW 9 in his cr oss-examination by admitting that PW 4 did not state to him that she saw the app ellant coming out with a dao in his hand from the bedroom of PW 1; (iii) the pro secution has failed to satisfactorily prove that the dao was seized from the pos session or at the instance of the appellant as evidenced from the contradictory statements of PWs 5, 6, 8, 9 and 1; (iv) though multiple injuries were found to be inflicted upon the deceased, yet no blood stain was found on the dao and (v) the place where the body of the deceased was found or murdered is also not clear ly established by the prosecution witnesses. In our considered view, the aforesa id circumstances, taken cumulatively, do not form a chain so complete that there is no escape from the conclusion that within all human probability the crime wa s committed by the appellant and none else. It is true that the appellant could have been the author of the crime, but then that is in the realm of possibility, suspicion, surmise and conjecture. We don’t convict an accused on mere suspicio n or on possibility. After all, the law of the land is that suspicion, howsoever grave it may be, cannot take the place of proof. In the final analysis, if the question is whether there are grounds for grave suspicion that the appellant is guilty of the charge, then the answer must be in the affirmative. However, if th e test to be applied is whether the prosecution has proved its case beyond reaso nable doubt that the appellant is guilty of the charge, our answer, albeit reluc tantly, is a clear no with a capital ’n’. In other words, two views on the guilt of the appellant are possible. In this view of the matter, we think it to be hi ghly unsafe to convict the appellant. In the view that we have taken, the impugn ed judgment of conviction and sentence cannot be sustained in law. 16. The result of the foregoing discussion is that this appeal succeeds. We set aside the judgment dated 17-4-2009 passed by the learned Sessions Judge, Siv sagar in Sessions Case No. 63(S-S) of 2007 convicting the appellant under Sectio n 302 IPC and sentencing him to life imprisonment. The appellant is, therefore, acquitted and is set at liberty forthwith unless he is wanted in connection with some other case. Transmit the LC record forthwith.
Arguments
Assailing the impugned judgment of conviction, Mr. P. Kataki, the learne 3. d counsel for the appellant, argues that in a case such as this appeal, based on circumstantial evidence, and where there was no ocular witness, the trial court was under obligation to consider as to whether the circumstances, cumulatively, taken together should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the app ellant and none others: this vital legal point has been completely overlooked by the trial court in returning a verdict of guilt against the appellant. He next contends that no reliable evidence could be produced by the prosecution to prove that the dao in question was seized at the instance of the appellant: though th e material Ext. 1, namely, the dao was alleged to have been seized from the poss ession of the appellant, yet PW 1, PW PW 3, PW 5, PW 6 and PW 8, in their eviden ce, did not corroborate each other as to from whom the same was actually seized: the seizure of the dao from the possession of the appellant is, therefore, high ly doubtful. The learned counsel further submits that though PW 1 stated in his examination-in-chief that one of his uncle’s son whose name he had forgotten had informed him that the appellant had caused the death of the deceased, his uncle ’s son was never examined by the prosecution and, as such, the testimony of PW 1 is reduced to hearsay evidence and is not admissible in law. Finally, he conten ds that there is material improvement/embellishment in the statement of PW 4 ina smuch as her statement in Court that when she rushed out of her house, she saw t he appellant getting out of the house of PW 1 with a dao in his hand, was never stated to the police during investigation. According to the learned counsel, suc h omission amounts to major contradiction and an improvement in the case of the prosecution, which could not have been relied upon by the trial court for convic ting the appellant. As the prosecution case is highly doubtful, argues the learn ed counsel, the conviction of the appellant cannot be sustained in law, and is l iable to be set aside. 4. On the other hand, Mr. D. Das, the learned Additional Public Prosecutor appearing for the State of Assam, supports the impugned judgment and submits tha t no interference is called for. According to him, the evidence of PW 4 clearly established that the appellant was last seen together with the deceased as prove d by the statement of PW 2, who categorically testified that when she left to th e nearby pond to have bath, the appellant and the deceased were at their house a nd that after she returned home, she found the deceased lying dead in their bed- room and the appellant standing at the back of their house. As there was no expl anation coming from the appellant as to in what manner and under what circumstan ces the deceased had met his end and as to how the dead body of the deceased was lying near him, the inference is irresistible and the conclusion inescapable th at it was none but the appellant, who caused the death of the deceased. It is fu rther submitted by the learned Additional Public Prosecutor that from the eviden ce of the prosecution witnesses, the prosecution has clinchingly established sev eral circumstances, which, taken cumulatively, form a chain so complete that the y unerringly point towards the guilt of the appellant. He, therefore, strenuousl y urges this Court to dismiss the appeal, which is bereft of merit. We have given our anxious consideration to the submissions advanced on b 5. ehalf of the counsel appearing for the rival parties. We have also carefully gon e through the impugned judgment and other materials brought on record. There is no dispute at the bar about the nature of injuries sustained by the deceased and the cause of his death. Therefor, this is all about who-dun-it. Undoubtedly, th ere is no ocular witness to the incident, and the prosecution case is, therefore , based on circumstantial evidence. It is a well settled proposition of law that when the case rests upon circumstantial evidence, such evidence must satisfy th e following tests: the circumstances from which an inference of guilt is sought to be drawn (1) , must be cogently and firmly established; (2) wards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete t hat there is no escape from the conclusion that within all human probability the those circumstances should of a definite tendency unerringly pointing to crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be compl (4) ete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 6. Before proceeding further, we may note that the prosecution relied on th e following circumstantial evidence to bring home the charge against the appella nt: (1) The appellant, who is the brother-in-law of the informant (PW 1) had com e to the house of PW 1 along with the deceased, who is stated to be his friend, At the time of occurrence, the appellant and the deceased were the only The occurrence took place in the morning of 30-6-2006, when none from th The dead body of the deceased with multiple cut injuries was found lying before the incident of murder took place; (2) persons who were found at the house of PW 1; (3) e family of PW 1 was present; (4) in a pool of blood at the bedroom of PW 1; (5) e house of PW 1 with a dao in his hand; (6) e police from the possession of the appellant; (7) Immediately after the occurrence, the appellant was seen going out of th The weapon of offence, namely, the dao (Mat. Ext. 1) was recovered by th Immediately after the incident, the neighbouring caught the appellant at the place of occurrence and tied him to a tree standing at the courtyard of the house of PW 1. 7. The first question for consideration is whether the deceased was last se en together with the appellant immediately before the murder took place? PW 2 is the wife of PW 1, whose sister married the appellant. According to PW 2, at the time of the occurrence, she was on the bank of their pond and her husband was p loughing in the field; that at that time, the appellant and the deceased were si tting at their house and that she went to the nearby pond to have a bath. She fu rther deposed that on returning home, she found the deceased lying dead in their bed-room and the appellant standing on the back of their house and that on seei ng the dead body, she raised alarm and called her mother-in-law Japani Chetia (P W 3), who arrived at their home. This witness was thereafter declared as hostile witness by the prosecution. In her cross-examination by the defense, she, howev er, disclosed that when she returned home from the pond, she found her father-in -law sitting in the drawing room and that her father-in-law could move around. P W 3 in her deposition stated that the incident took place at about 8 AM when she was at home and that on hearing the alarm of PW 2 that somebody was killed, she rushed to their courtyard and that the house of PW 1 could seen from their cour tyard, but she did not go to the house of PW 1 to see the dead body of the decea sed. This witness was then declared as hostile witness. The statement of PW 2 th at PW 3 arrived at their home after she called her is clearly contradicted by PW 3 herself when she said that she did not go to the house of PW 1 (PW 2). 8. PW 1, who is the husband of PW 2, deposed that while he was ploughing in the field, he was informed by one of his uncle’s son, whose name he did not rem ember; that the appellant, who happened to be the husband of his sister, had don e to death one person and that he rushed to his house where he found the appella nt being tied to a tree in their courtyard and that when he entered his dwelling house, he found the deceased lying on the floor dead with cut injuries on his n eck and back. He then lodged an FIR to that effect. In his cross-examination, he stated that when he reached home, there were about 30 persons at the place of o ccurrence and that his mother was active at the time of the occurrence. In his c ross-examination, he disclosed that when he arrived at his house on receipt of t he information about the occurrence, he found his ailing father at home. Though he initially denied in the cross-examination that his father could move around a t the time of occurrence, he subsequently admitted that his father was capable o f movement. 9. PW 4 testified that on the date of occurrence, she heard PW 2 calling he r mother-in-law out that somebody had been stabbed at their house and that when she rushed out of her house at once and saw the appellant running out of the hou se of PW 1 with a dao in his hand. She further testified that the neighbours had assembled at the place of occurrence and tied the appellant to a tree standing on the courtyard of their house and that after sometime the police at the place of occurrence. She, however, deposed that she did not go to the house of PW 1 to see the dead body of the deceased, who was not known to her earlier. In her cro ss-examination, she denied that she did not state before the police that she saw the appellant coming out of the house of PW 1 carrying a dao in his hand. The I .O. of the case, who was examined as PW 9, contradicted this testimony of PW 4 b y stating that she did not state to him that she saw the appellant coming out wi th a dao in his hand from the bed room of PW 1. 10. PW 5 is the VDP Secretary of the locality. He admitted in his cross-exam ination that he did not see the occurrence and that he did not state to the poli ce that PW 1 reported to him the appellant stabbed the deceased at his house (PW 1). Coming now to the evidence of PW 6, all that he disclosed is that the polic e arrested the appellant from the courtyard of the house where the incident took place. PW 8 is the witness who accompanied PW 5 along with the police to the pl ace of occurrence where, he deposed, the dead body of the deceased lying in a po ol of blood by the side of the bench which could accommodate some two persons in the room of the house of PW 1. He testified that he saw the appellant at the ho use of PW 1 and that the police arrested him and took him to their vehicle. In h is cross-examination, he deposed that at the time of occurrence, the appellant w as sitting at the house of the elder brother of PW 1.