High Court · 2012

5. The prosecution examined as many as 8 witnesses, including the M edical Officer and Investigating Officer of the case, during trial. All the wit nesses were cross-examined by the defence counsel. On completion of the recordi ng of the prosecution witnesses, the statement of the accused was recorded in te rms of provisions under Section 313 CrPC, by the learned trial Court. However, the accused took the stand of total denial. On conclusion of the trial, the lea rned trial Court convicted and sentenced the appellant as aforesaid, giving rise to this appeal.

6. We have heard Mr. AB Choudhury, learned senior counsel assisted by Ms. M. Syreen, learned counsel appearing for the appellant and Mr. KA Mazumda r, learned Addl. Public Prosecutor, Assam, representing the State. Mr. Choudhury, learned senior counsel, for the appellant submitt 7. ed that the accused/appellant has been convicted without sufficient evidence on record and on the basis of statements recorded u/s 161 CrPC, given by the hostil e witnesses before the I/O. In support of his submission, learned senior counse l further submitted that the ’dao’, which was seized during investigation was no t sent for serological examination to the Forensic Science Laboratory, to ascert ain whether the blood seen in the seized dao in fact contained human blood. In this regard, learned senior counsel relied on a decision of the Apex Court repo rted in 2008 (3) SCC 210 (Satta Tiya v. State of Maharastra).

8. In reply to the above contention, Mr. KA Mazumdar, learned Addl. PP submits that the prosecution has been able to establish that the accused was last seen in the company of the deceased quarreling with her and immediately th ereafter, the deceased was found lying dead in a pool of blood. Therefore, it i s obligatory, on the part of the accused to explain as to how the deceased had s ustained fatal injuries, while she was in his company, moments before her death.

9. In support of the rival submission advanced by the learned couns el for the appellant, as well as the respondent, we would like to marshal the pr osecution evidence on record.

10. PW.1, Pulin Ch. Nath is not the eye-witness to the occurrence. P W.1 filed the FIR stating therein that his wife was lying dead in a pool of bloo d at his residence. According to PW.1, the killing of his wife was reported to him by his son Rajib. However, from the evidence on record, it appears that Raj ib was not examined by the prosecution, as a witness. PW.1 was also informed by his nephew Nirendra Ch. Nath (PW.2) that his wife was killed by the accused/app ellant. On reaching home, PW.1 found his wife lying injured on the path in fron t of his house. PW.1 also proved the Ejahar Exht.1 submitted by him in the pol ice station. PW.2, Nirendra Ch. Nath, is a close relation of the accused/appe 11. llant, as well as the complainant. According to PW.2, he had informed PW.1 rega rding the death of the deceased. PW.2 also deposed that the dead body of the de ceased was lying in front of her own house.

12. PW.3, Rupak Chakraborty, who is a teacher by profession, was goi ng to the residence of one Niranjan Goswami, for treatment of his son, at the re levant time. When he was going by PWD road, he found the deceased and accused/a ppellant were picking up quarrel on the road. PW.2 intervened and asked them no t to quarrel and then the accused and deceased left the place for their own hous es. PW.3 further deposed that, he heard the shouting and came back to the place of occurrence and found the deceased was lying in an injured condition. Being asked, the children of PW.1, told him that accused/appellant had killed the dece ased. This witness was subsequently declared hostile and he was cross-examined b y the prosecution as well as by the defence. PW.3, in his cross-examination clarified that after compromising the qua rrel, he went to the house of Niranjan Goswami, which was about 4/5 meters from the house of accused. According to PW.1, the house of the accused and his house are situated in different hillocks and PWD road passes through the houses of th e accused and the deceased. The distance between the house of the accused and t he house of the deceased is about 15 to 20 Nal (1 Null=12 Feet.).

13. PW.4, Niranjan Goswami, a resident of the locality, was coming t o the house of Rupak Chakraborty (PW.3), and on his way he found accused and the deceased picking up quarrel in front of their houses. PW.4, hearing shouting fr om the quarrel came back to the place of occurrence and on reaching there, he fo und the deceased lying with bleeding injury, in front of her house. PW.4 did no t ascertain whether the deceased has senses. On being asked, the children infor med PW.4 that the deceased was killed by the accused/appellant. This witness was also cross examined by the prosecution, after declaring him hostile. PW.4, in his cross-examination stated that he did not witness th e incident except the part he stated in his examination-in-chief. PW.4 was thor oughly cross-examined by the defence, but nothing could be discerned by the defe nce counsel in favour of the accused/appellant.

14. as found the following injuries on the deceased: PW.5 Dr. Lipi Deb, who carried out the post-mortem examination h

1. horizontally. Severe sharp incised wound about 8 (cid:29)x3 (cid:29) brain exposed over back of skull (cid:28)Injuries:

2. 3. 4. 5 (cid:29) x 3 (cid:29) head of humorous severed incised wound over right arms 6 (cid:29)x2 (cid:29)x4 (cid:29) with underlying bone cut over face on right side Over abdomen right side about 6 (cid:29)x (cid:29)x2 (cid:29) incised wound. Cranium and Spinal Canal: All organs pale except scalp, skull, vertebrae as described in (1) in external i njury. Thorax: All organs pale except walls, ribs and cartilages as healthy and heart and vesse ls empty. Abdomen: Walls as described in external appearance (4) stomach and contents -empty, small intestine and its contents- contained mucoid material, large intestine and its contents contained faecal matter and other organs were pale. Bladder was empty and organs of generation normal and pale. All injuries were ante mortem. (cid:29) The Doctor, PW.5 opined that the death was due to shock and haemorhage c aused by ante-mortem injury sustained. Ext.4 is the post mortem report and Ext .4(1) is her signature. PW.5 further deposed that the injuries may be caused by sharp and heavy weapon like dao and those injuries are sufficient to cause dea th of any person in ordinary course of nature . From the evidence of the Doctor, PW.5 it appears that the injuri es sustained by the deceased were homicidal in nature.

15. d hostile by the prosecution. PW.6, is the daughter of the accused/ appellant, she was declare

16. PW.8, Asim Kr. Dey, the Investigating Officer of the case seize d a ’dao’ smeared with blood from the veranda of the accused. The accused did n ot deny recovery of a blood stained ’dao’ in the cross examination of the I/O.

17. The accused/appellant took the plea of total denial and did not come forward to adduce evidence. From the evidence of prosecution witnesses, mo re particularly, PW.3 and PW.4 it clearly transpires that the deceased was last seen in the company of the accused quarreling with her. Immediately, thereafter , the deceased was found lying on the ground with severe injuries on her person. Subsequently, the deceased succumbed to her injuries. As the deceased was las t seen together in the company of the accused quarrelling with her, a few moment s before the occurrence, it was obligatory on the part of the accused, to explai n the circumstances in which the deceased had sustained the injuries or as to wh en the accused left the company of the deceased. However, from the evidence on record, it appears that the accused/appellant except taking the plea of total de nial, did not come forward prima facie to explain, as to how the deceased had su stained injuries or as when he had left the company of the deceased. Admittedly the deceased was quarreling with the accused just before sustained fatal injuri es on her person. The post-mortem report shows that the victim was severely assaulte d by sharp cutting weapon like ’dao’ as a result of which she died. The doctor o pined that death of that deceased had resulted from multiple on vital organs and it was homicidal in nature.

18. We have no doubt that homicidal death of Sandhya Rani had happen ed immediately after the altercation with the accused. Now we have to deal with another crucial issue. Having found that Sandhya Rani was in the company of the accused moment before sustain fatal injuries, can the accused escape the penal c onsequences of such murder.

19. The accused has not given any explanation as to what happened to Sandhya Rani immediately after the altercation with the accused. The pristine r ule that the burden of proof is on the prosecution to prove the guilt of the acc used should not be taken as a fossilised doctrine, as though it admits no proces s of intelligent reasoning. The doctrine of presumption is not alien to the abov e rule, nor would it impair the temper of the rule. On the other hand, if the tr aditional rule relating to burden of proof of the prosecution is allowed to be w rapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

20. When it is proved to the satisfaction of the Court that Sandhya Rani was seen moments before sustaining fatal injuries, in the company of the ac cused, the accused alone knew what happened to her until he was with her. Sandhy a Rani was found brutally injured within a short time after then the permitted r easoning process would enable the Court to draw the presumption that the accused murdered Sandhya Rani. Such inference can be disrupted if accused would tell th e Court, what else happened to Sandhya Rani at least until he was in their custo dy.

21. A reference may be made to a later decision in Sharad Birdhichan d Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to p rove that the chain is complete and the infirmity of lacuna in prosecution canno t be cured by false defence or plea. The conditions precedent in the words of th is Court, before conviction could be based on circumstantial evidence, must be f ully established. They are- the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ established; the facts so established should be con sistent only with the hypothesis of the guilt of the accused, that is to say, th ey should not be explainable on any other hypothesis except that the accused is guilty; the circumstances should be of a conclusive nature and tendency; they sh ould exclude every possible hypothesis except the one to be proved; and there mu st be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that i n all human probability the act must have been done by the accused. These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 1 80), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261) and Kusuma An kama Rao v State of A.P. (Criminal Appeal No.185/2005 disposed of on 7.7.2008).

22. So far as the last seen aspect is concerned it is necessary to t ake note of two decisions of this court. In State of U.P. v. Satish [2005 (3) SC C 114] it was noted as follows: \22. The last seen theory comes into play where the time-gap between the point o f time, when the accused and the deceased were seen last alive and when the dece ased is found dead, is so small that possibility of any person other than the ac cused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the acc used, when there is a long gap and possibility of other persons coming in betwee n exists. In the absence of any other positive evidence to conclude that the acc used and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence th at the deceased and the accused were seen together by witnesses PWs. 4 and 5.\ In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 1

23. 72], it was noted as follows: \27. The last-seen theory, furthermore, comes into play where the time gap betwe en the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a ca se the courts should look for some corroboration\. (See also Bodh Raj v. State o f J&K (2002(8) SCC 45).)\ .

24. [2005(12) SCC 438] and Kusuma Ankama Rao’s case (supra). A similar view was also taken in Jaswant Gir v. State of Punjab In Sahadevan alias Sagadeval vs State, (2003) 1 SCC 534, the Ape 25. x Court has held that that in a case of last-seen-together, it is obligatory on the part of the appellant to explain as to when and where he parted the company of the deceased.

26. Learned counsel for the accused submitted that the dao seized by the police was not sent for forensic examination to verify whether the blood found in the ’dao’ belonged to any human being or not. But the fact remains tha t the accused did not come forward to deny the recovery of a blood smeared ’dao’ from his veranda. In this regard, Hon’ble Supreme Court observed in Sattat iya v. State of Maharashtra, (2008) 3 SCC 210, as follows:

26. The next thing which is to be seen is whether the evidence relating to the r ecovery of clothes of the appellant and the half blade, allegedly used for commi ssion of crime, is credible and could be relied on for proving the charge of cul pable homicide against the appellant. In this context, it is important to note t hat the prosecution did not produce any document containing the recording of sta tement allegedly made by the appellant expressing his desire to facilitate recov ery of the clothes and half blade. The prosecution case that the accused volunte ered to give information and took the police for recovery of the clothes, half b lade and purchase of handkerchief is highly suspect. It has not been explained a s to why the appellant gave information in piecemeal on three dates i.e. 3-10-19 94, 5-10-1994 and 6-10-1994. Room No. 45 of (cid:28)Ganesh Bhuvan (cid:29) from which the cloth es are said to have been recovered was found to be unlocked premises which could be accessed by anyone. The prosecution could not explain as to how the room all egedly belonging to the appellant could be without any lock. The absence of any habitation in the room also casts serious doubt on the genuineness and bona fide s of recovery of clothes. The recovery of half blade from the roadside from bene ath the wooden board in front of (cid:28)Ganesh Bhuvan (cid:29) is also not convincing. Undispu tedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory r egarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the chemic al examiner’s report the bloodstains found on the shirt, pants and half blade we re those of human blood, the same could not be linked with the blood of the dece ased. Unfortunately, the learned Additional Sessions Judge and the High Court ov erlooked this serious lacuna in the prosecution story and concluded that the pre sence of human bloodstains on the clothes of the accused and half blade were suf ficient to link him with the murder. The facts and circumstances discussed in the decision of Sattati 27. ya (supra) is not similar to the facts and circumstances of the present case. T herefore, the aforesaid decision cannot be pressed into service in the instant c ase.

28. The principle \falsus in uno falsus in omnibus\ does not apply i n India (false in one thing, false in everything). It is not uncommon even for t ruthful witness to make certain exaggerations or embellishments in his statement . It is the duty of the court to scrutinize the evidence and separate grain from Chaff Ugar Aher v. State of Bihar,1965 (1) Cri LJ 256. There is hardly a witnes s whose evidence does not contain a grain of untruth or at any rate exaggeration , embroidery, embellishment. If the remaining evidence is trustworthy and substr atum of the prosecution case remains intact, then the court should uphold the pr osecution case, to the extent it is considered safe and trustworthy as has been held by the Supreme Court in a case reported in Ranvir v. State of Punjab, , 1 973 Cri LJ 1120.

29. The High Court of Allabahad in Kunwar and Others in (Jai) vs. St ate of U.P. (1993 CRL.LJ 3421) held that the reliance also can be put on the sta tement of the hostile witnesses. It is a settled position of law that the testi mony of witnesses, who has been declared hostile, can also be relied on that par t of it, which inspire confidence of the Court and corroborates with the testimo ny of other witnesses. Merely because the witnesses have been declared hostile, it cannot be the ground for rejecting the testimony of such hostile witnesses a s unreliable. The Apex Court in Ram Swaroop v. State of Rajasthan, (2004) 13

30. SCC 134 held that- (cid:28)It is no doubt true that merely because a witness is declared hostile his evide nce cannot be discarded. The fact that a witness has resiled from the earlier st atement made in the course of investigation puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboratio n. Slight discrepancies in the statement of eye witnesses are not uncommon in t he testimony of most truthful witnesses. There are details which, unless the wit nesses are tutored, must vary in minor particulars, and in the normal course of things are found generally to be stated differently by different observers. Such differences or variations are indications of truth rather than falsehood of the version given by the prosecution witnesses. See Yaswant v. State of Maharashtra 1972 SCC (Cri) 684:1972 CriLJ 1254), State of Assam v. Krishna Rao. (cid:29)

31. Both the witnesses, PW.4 and PW.5 were not related, either to ac cused or the deceased. Both the witnesses corroborated each other to reaffirm that the accused was last seen in the company of the deceased quarreling with he r, immediately thereafter, the deceased was found with severe bleeding injuries on her person, as a result of she died.

32. From the above discussion, it can be safely concluded that in th e quarrel that ensued between the deceased and the accused, the accused had infl icted the fatal injuries, on the person of the deceased as a result of which the deceased succumbed to the injuries.

33. eal. Accordingly, the appeal stands dismissed. 34. Send back the LCR forthwith. In view of the above discussion, we do not find merit in the app