High Court
Case Details
Crl.A. 132/2011 BEFORE HON’BLE MR. JUSTICE I.A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH JUDGEMENT AND ORDER { IA Ansari, J } This is an appeal, under Section 372 read with Section 378 of the Code of Crimin al Procedure, putting to challenge the judgment and order, dated 13-06-2011, pas sed, in Sessions Case No. 74(DH) 2006, by the learned Sessions Judge, Dhemaji, a cquitting the accused-respondent No. 2, namely, Bidyadhar Doley, of the offences under Sections 449 and 302 read with Section 34 IPC. 2. The case of the prosecution, as unfloded at the trial, may, in brief, be described as under:
Legal Reasoning
(i) Sarbeswar Doley (since deceased) was uncle of accused Bhupen Doley @ Paksir. The said accused, accompanied by two more persons, namely, accused Janm eswar Doley and accused Bidyadhar Doley (i.e., respondent No. 2 herein) came to the house of Sarbeswar on 01-12-2005 at about 5.30 p.m. and while accused Bidyad har Doley (i.e., the respondent No. 2 herein) remained standing outside the hous e of Sarbeswar, accused Bhupen and Janmeswar Doley entered into the house and we nt to the fire-place, where Sarbeswar was sitting. Appearing before Sarbeswar, a ccused Bhupen Doley started altercation with Sarbeswar over the issue of their l and and, during the course of altercation, accused Janmeswar, suddenly, grabbed Sarbeswar and, while accused Janmeswar was holding Sarbeswar, accused Bhupen sta bbed into the abdomen of Sarbeswar by means of a sharp cutting weapon. Having st abbed Sarbeswar, as indicated hereinbefore, accused Bhupen and Janmeswar ran awa y accompanied by accused Bidyadhar (i.e., the respondent No. 2 herein), who was, as already pointed out hereinbefore, was waiting outside the house of Sarbeswar . (ii) Having heard hue and cry raised from the house of Sarbeswar, his neighbo urs, including the first informant, namely, Dilip Doley (PW7), came running to t he house of Sarbeswar and saw wife of Sarbeswar crying near the fire place with injured Sarbeswar lying on her lap. In the presence of Dilip Doley (PW7), Sarbes war breathed his last and, on being asked by him and other neighbours, the membe rs of Sarbeswar’s family told their neighbours that it was accused Bhupen Doley, who had stabbed Sarbeswar and killed him. On the day of occurrence itself, i.e. , on 01-12-2005, a written Ejahar was lodged, at Machkhowa police outpost, at ab out 8.00 p.m., by Dilip Doley. (iii) Having made GD Entry No. 13, dated 01-12-2005, at 8.00 p.m., the said Ej ahar was sent by PW8 (Sub-Inspector, Lambit Gogoi). In-charge of the said outpos t, to the Officer-in-Charge, Dhakuakhana Police Station, for registering a case and Dhakukhana Police Station Case No. 125 of 2005, under Seciton 302 IPC, was a ccordingly registered against only accused Bhupen Doley treating the said Ejahar as the First Information Report (in short, ’FIR’). During investigation, the In vestigating Officer (PW8) visited the place of occurrence, drew sketch map, prep ared inquest report and recorded the statement of witnesses. (iv) On the following day, i.e., on 02-12-2005, accused Bhupen Doley surrendered at the said outpost and, on the basis of the disclosure statement ( Ext.8) made by him and on being shown by him, PW8 (Investigating Officer) recove red a dao as weapon of offence from under bush located by the side of the house of accused Bhupen Doley. The dao, so recovered, was seized by Seizure List (Ext. 2). On 05-12-2005, Sumitra Pegu (PW3), widow of deceased Sarbeswar, made an (v) application, addressed to the Superintendent of Police, Dhemaji, stating to the effect that due to mental depression following the incident, they could not name all those, who were involved in the occurrence of killing her husband, and that besides accused Bhupen Doley, accused Bidyadhar Doley and accused Janmeswar Dol ey were also involved in causing death of her husband. (vi) In course of time, when the investigation was over, police laid charge-s heet against all the three accused persons, namely, Bhupen Doley, Janmeswar Dole y and Bidyadhar Doley, under Sections 450/302/34 IPC, showing accused Janmeswar Doley as an absconder. Upon commitment of the case to the Court of Sessions for trial, charges 3. were framed, on 30-11-2006, against accused Bhupen Doley and accused Bidyadhar D oley (i.e., the respondent No. 2) under Sections 449 and 302 read with Section 3 4 IPC. To the charges, so framed, both the accused, Bhupen Doley and Bidyadhar D oley, pleaded not guilty. 4. When the trial was in progress, accused Bhupen Doley, too, absconded and was accordingly declared absconder.
Legal Reasoning
5. At the trial, prosecution examined altogether 9 (nine) witnesses includi ng the widow and two daughters of the said deceased. The accused-respondent No. 2 was, then, examined under Section 313 Cr.P.C. In his examination aforementione d, while denying that he was, in any way, involved in the occurrence, the accuse d-respondent No. 2 took the plea that he was, on the day of the occurrence, in t he house of one Phukan Doley. In support of its case, the defence, too, adduced evidence by examining two witnesses. 6. Having, however, found the accused-respondent No. 2, Bidyadhar Doley, no t guilty of the offences, which he stood charged with, learned trial Court acqui tted him accordingly. Aggrieved by the acquittal of the accused-respondent, Bidyadhar Doley, t 7. his appeal has been preferred, as mentioned above, by Sumitra Doley, widow of de ceased Sarbeswar. 8. We have heard Mr. Z Alam, learned counsel for the appellant, and Mr. P T alukdar, learned counsel for the accused-respondent No.2. We have also heard Mr. M Biswas, learned counsel, as Amicus Curiae, and Mr. KA Mazumdar, learned Addit ional Public Prosecutor, Assam. 9. While considering the present appeal, it may be pointed out, at the very outset, that it is open to a High Court to re-appreciate evidence and draw its own conclusions if the High Court finds that the judgment of the trial Court is perverse in the sense that the decision has been reached and the finding of acqu ittal is based against the weight of the evidence on record or suffers from omis sion to consider the relevant pieces of evidence. (See Gimini Bala Koteswara Rao and others -vs- State of Andhra Pradesh Through Secretary, reported in (2009) 1 0 SCC 636). 10. Before we come to the evidence of those witnesses, who are claimed to be eye witnesses to the occurrence, we may point out that the post mortem examinat ion on the dead body of Sarbeswar was, admittedly, conducted, on 02-12-2005, by PW6 (doctor), who found as follows: (cid:28)Post-mortem Examination was done of a male dead body of average built. Rigor-mo rtis is present all over the body. On external examination, a perforating wound is found on the left side o f the abdominal wall. The interior end of the wound is found 4 inch left and abo ve the umbilicus. The end is 2 ‰ (cid:28)x 1 (cid:29) in diameter and a small portion of intest ine came out through this end. There is slight oozing of clotted blood through t his end. The posterior end of the wound is found in between 11th and 12th rib, le ft which is 3 (cid:29) lateral of the mid-line. The end is 1 ‰ (cid:28)x 1 (cid:29) in diameter. There is oozing of clotted blood is seen at this end and on dissection through this wo und; a huge collection of clotted blood is seen inside the abdominal cavity. The spleen is cut through. The cut margins of the spleen is washed with water. T he blood stains are not removed. Therefore, the injury is ante-mortem in nature. No other injury or ligature mark is seen on the body. This injury is sufficient to cause death of a person in the ordinary cou rse of nature. (cid:29) In the opinion of the doctor, the death was caused due to shock and haem 11. orrhage, which resulted from the injury sustained. The defence declined to cross -examine the doctor (PW6) and, thus, his findings, as regard the injury sustaine d by the said deceased, and his opinion as regards the cause of death of the sai d deceased, remained undisputed. This apart, we, too, do not notice anything inh erently incorrect or improbable in the evidence given by the doctor (PW6) and we do, therefore, hold that Sarbeswar had sustained the injury as has been describ ed by doctor (PW6) and that his death was caused due to shock and haemorrhage, w hich resulted from the injury sustained, the injury being sufficient to cause de ath of a person in the ordinary course of nature. Bearing in mind the undisputed medical evidence on record, we deem it ap 12. propriate to take note of the evidence of the Investigating Officer (PW8). Accor ding to this witness, he was, on 01-12-2005, In-charge of Machkhowa Police outpo st and, on that day, at about 8.00 p.m., he received a written Ejahar, which is Ext. 7, from Dilip Doley (PW7) and, having made GD Entry No. 13, dated 01-12-200 5, at 8.00 p.m., he forwarded the said Ejahar to Dhakuakhana Police Station for registering a case and visited the place of occurrence, drew sketch map of the p lace of occurrence, held inquest over the dead body of Sarbeswar and examined wi tnesses. We may, now, point out that the FIR (Ext.7) shows that the informant, Di 13. lip Doley (PW7), had alleged, in his Ejahar, that on 01-12-2005, at about 6.00 p .m., Bhupen Doley had killed his uncle, Sarbeswar, by entering into the house of Sarbeswar and the dead body of Sarbeswar was lying inside his house. 14. What is also important to note is that the informant, Dilip Doley (PW7), has deposed that his house is adjacent to the house of Sarbeswar and, on hearin g hue and cry, raised from the house of Sarbeswar, he went running and, on arriv ing at the house of Sarbeswar, he found Sarbeswar’s wife crying near their fire- place taking Sarbeswar on her lap and that Sarbeswar died in his presence and, o n being asked, Sarbeswar’s daughter told him (PW7) that Bhupen had killed her fa ther by striking with a sharp weapon and left the scene, whereupon he (PW7) went to the police outpost and lodged there the Ejahar, which is Ext.7. From the evidence of PW7 (i.e., the informant), coupled with the content 15. s of the FIR (Ext.7), it becomes abundantly clear that immediately after the occ urrence, PW7 had been reported by none other than the daughter of the said decea sed that it was accused Bhupen, who had killed Sarbeswar. Thus, the lone assailant, named by the daughter of the said deceased, wa 16. s Bhupen Doley, who has absconded during trial, and the names of neither accused Janmeswar Doley nor of accused Bidyadhar Doley (i.e., the respondent No. 2 here in) was mentioned as persons having come to the house of Sarbeswar along with ac cused Bhupen Doley. 17. Even PW1, who is also neighbor of the said deceased, has deposed to the effect that on hearing hue and cry, when he came to the house of the said deceas ed, Sumitra (PW3), widow of the said deceased, told them that Bhupen had killed her husband. 18. We may pause, at this stage, to point out that the Investigating Officer (PW8) has deposed that while the investigation was pending, Sumitra, widow of t he said deceased, filed an application before the Superintendent of Police, Dhem aji, stating that due to mental depression following the incident, they could no t name accused Bidyadhar and Janmeswar Doley, though the said two persons were a lso involved in the occurrence. 19. Thus, the names of accused Janmeswar Doley and present respondent No. 2, namely, Bidyadhar Doley, surfaced as associates of accused Bhupen on the fifth day of the occurrence. The explanation offered, in the application, so made to t he Superintendent of Police by the widow of the said deceased, is not very plaus ible and convincing inasmuch as the evidence on record does not reveal as to why it took almost 5 days for the widow of the said deceased to name the present re spondent, Bidyadhar Doley, and the absconding accused, Janmeswar Doley, not only to the neighbours, who had assembled immediately after the occurrence, but even to the police, who had come to the place of occurrence. 20. Bearing in mind what have been indicated above, when we turn to the evid ence of PW3, widow of the said deceased, we notice that according to her evidenc e, on the day of the occurrence, at about 5.30 p.m., her husband was inside his house and, at that time, Bhupen Doley, Janmeswar Doley and Bidyadhar Doley came and while Bhupen and Janmeswar entered inside the house, accused Bidyadhar remai ned outside the house and, having entered the house of the said deceased, Bhupen started an altercation with the said deceased and, following the altercation, a ccused Janmeswar grabbed the said deceased and accused Bhupen stabbed the said d eceased, on his abdomen, by means of a sharp-edged weapon and, then, all the thr ee accused fled away, whereupon they raised hue and cry and some people came and that her husband died near their fire-place as a result of the injury caused to his abdomen and Dilip Doley informed the police, police came and examined the d ead body. 21. Broadly in tune with the evidence of her mother (PW3), PW4, elder daught er of the said deceased, has deposed that on the day of the occurrence, she (PW4 ), her mother (PW3) and her younger sister (PW5) were inside their house, accuse d Janmeswar and Bhupen entered into their house, Bhupen had altercation with her father over the matter of land and, then, Janmeswar caught hold of her father a nd Bhupen stabbed his father on his abdomen with the help of a sharp weapon and both of them, then, fled away and even Bidyadhar, who was standing outside the h ouse, fled away and that her father died immediately and, on hue and cry raised by them, people arrived there and Dilip Doley informed police, whereupon police came there. 22. Close on the heels of the evidence of PW3 and PW4, PW5, younger daughter of the said deceased, has deposed that on the day of the occurrence, when she, her mother (PW3) and her elder sister (PW4) were together inside their house, ac cused Bhupen came inside their house and had altercation with her father and, fo llowing the altercation, accused Janmeswar caught hold of her father and accused Bhupen stabbed her father by menas of a sharp weapon, her father fell down and the accused fled away, whereupon Dilip Doley informed the police, police came an d examined her father’s dead body. 23. It is of utmost importance to note that PW5 did not name accused Bidyadh ar as an associate of accused Bhupen and Janmeswar. Her evidence, nowhere, indic ates that accused Bidyadhar, too, had come to the house of the said deceased and while accused Bidyadhar was standing outside the house of Sarbeswar, accused Bh upen and Janmeswar together, as described by PW5, caused the death of her father , Sarbeswar. 24. What, thus, emerges from the above discussion is that, on 01.12.2005 (i. e., the date of the occurrence), the name of accused Bhupen Doley was the lone n ame, which was mentioned as the person, who had entered into the house of Sarbes war and caused his death. Neither the name of Janmeswar nor the name of Bidyadh ar surfaced as assailant of Sarbeswar or associate of accused Bhupen. It was, fo r the first time, on 05.12.2005, that accused Janmeswar and accused Bidyadhar we re also named as accused by the widow of the deceased and since the explanation, offered by the widow, was not at all convincing, the learned Court below was wh olly justified in taking the view that the evidence of the widow and her two dau ghters were unsafe to rely upon. 25. Coupled with the above, the evidence of PW3, PW4 and PW5 clearly show th at all of them, including deceased Sarbeswar, were inside their house, when accu sed Bhupen and accused Janmeswar allegedly entered into their house. It is not a t all discernible from their evidence as to how they came to learn that the resp ondent, Bidyadhar Doley, was standing outside their house, when Janmeswar and Bh upen had come inside the house of the said deceased. Viewed from this angle, to o, we do not find that the evidence of PW3, PW4 and PW5 can be safely relied upo n to fasten the respondent, Bidyadhar, with the occurrence of stabbing of Sarbes war. 26. Mr. M. Biswas, learned amicus curiae, has pointed out, and rightly so, t hat the learned trial Court has described the widow and the two daughters of the said deceased as interested witnesses; whereas they were related witnesses and not interested witness. Reliance, in this regard, has been placed by Mr. Biswas, learned amicus curiae, on the case of State of Rajasthan -Vs- Smt. Kalki & Anot her, reported in (1981) 2 SCC 752. We are clearly of the view that a related wit ness may, in a given case, be also an interested witness if he or she derives so me benefit from the result of the litigation in a civil case, or, who may be int erested in ensuring that the accused person gets punished. The relevant observat ions appearing at para 7, in Smt. Kalki & Another (supra), read as under: (cid:28)7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a (cid:28)highly interested (cid:29) witness because she (cid:28)is the wife of the deceased (cid:29), and (2) there were discrepancies in her evidence. With r espect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; bu t she cannot be called an (cid:28)interested (cid:29) witness. She is related to the deceased. (cid:28)Related (cid:29) is not equivalent to (cid:28)interested (cid:29). A witness may be called (cid:28)interested (cid:29) only when he or she derives some benefit from the result of a litigation; in t he decree in a civil case, or in seeing an accused person punished. A witness wh o is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be (cid:28)interested (cid:29). In the instant case PW 1 had no interes t in protecting the real culprit, and falsely implicating the respondents. (cid:29) 27. Because of what have been discussed and pointed out above, we have no he sitation in holding that in the context of the evidence, which the prosecution h ad adduced, the learned trial Court was wholly justified in reaching the conclus ion, which it did, that the case against accused Bidyadhar Doley had not been pr oved beyond reasonable doubt inasmuch as the informant, a neighbour of the said deceased, clearly deposed that upon hearing hue and cry, when he had gone to the house of Sarbeswar, he was told that accused Bhupen had committed murder of Sar beswar and the name of Bidyadhar was never mentioned. To the same effect is the evidence of PW2, who, too, though a neighbor of Sarbeswar did not state, in his evidence, the name of accused Bidyadhar as one of the assailants. 28. The learned trial Court has concluded that the presence of accused Bidya dhar at or near the place of occurrence was doubtful. We have no reason to disag ree with the conclusion so reached by the learned trial Court. This apart, we fi nd that the evidence of PW3, PW4 and PW5 cannot be described as evidence of whol ly reliable witnesses. Even if their evidence is not rejected outright as wholl y unreliable, they can, at best, be described as witnesses, who are neither whol ly reliable nor wholly unreliable. The evidence of such a witness needs corrobor ation from independent credible evidence, direct or circumstantial. 29. In the case at hand, apart from the fact that there is no credible evide nce on record corroborating the evidence given by PW3, PW4 and PW5 implicating a ccused Bidyadhar, the evidence of the neighbours, including the informant, belie the evidence of PW3, PW4 and PW5, when we notice that they had not, admittedly, told their neighbours, when the neighbours had arrived immediately after the oc currence, that Bidyadhar was also involved in the occurrence of stabbing of Sarb eswar by Bhupen Doley. In fact, even in her evidence at the trial, PW5 has not n amed accused-respondent, Bidyadhar Doley as one of the assailants of the abscond ing accused, Bhupen Doley. 30. of the accused-respondent, Bidyadhar. 31.
Decision
In the result and for the reasons discussed above, this appeal fails and the acquittal of the accused-respondent, Bidyadhar Doley, is maintained. This a Situated thus, we do not see any reason to interfere with the acquittal ppeal is, therefore, dismissed. 32. 33. ble assistance rendered to this Court in this case. Send back the LCR. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valua