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2001 DIGILAW 147 (GAU)

Priya Buragohain v. State of Assam

2001-05-24

P.G.AGARWAL, R.S.MONGIA

body2001
P.G. AGARWAL, J. — This criminal appeal is directed against the judgment and order passed on 26.3.97 by the learned Sessions Judge, Shivsagar in Sessions Case No. 61(S-S)/86. As many as lO-accused persons were tried for the offence under Section 302/427 IPC read with Section 34 IPC. It may be mentioned here that Police had submitted chargesheet against 13 accused persons out of which Gautam Borgohain was tendered pardon as he turned approver. Accused Dimbeswar Borgohain died during the pendency of the trial and another accused Shyam Borgohain absconded and the case against him was splitted up. Oh conclusion of the trial, accused-appellants Priya Borgohain and Kumud Borgohain were convicted under Section 302/34 IPC. They were also convicted for the offence under Section 427/149 IPC. Accused Bhupen Borgohain, Jitu Borgohain and Kukil Borgohain were convicted under Section 427/149 IPC. Six other accused persons were acquitted. The present appeal has been filed by the accused-appellants Priya Borgohain and Kumud Borgohain. 2. We have heard Mr J.M. Choudhury, learned counsel for the appellants as well as learned Public Prosecutor, Assam. 3. The prosecution story as disclosed in the ejahar exbt. 7(/-2) is that on 21.1.86 at about 7 pm, a mob of about 50 persons entered into the dwelling house of the complainant by breaking open the gate. Thereafter, they damaged the vehicle belonging to the owner of the house. Two appellants then entered into the room of the house and hacked Smt. Kunti Konwar and Smt. Ruplekha Konwar, mother and sister of the informant, to death, with dao and axes. 4. So far the death of Kunti and Ruplekha on the date of occurrence is concerned, there are oral and medical evidence on record. PW-11 Dr. Tapan Borboruah, who held autopsy over the dead body of Kunti Konwar, has found as foliows:- "1) One incised wound measuring 8" x 2" x 1" over the scalp involving right occipital and parietal bones in anterior posterior direction. 2) Another incised would over the scalp and underlying bone anterior-posterior direction placed over middle of skull covering occipital bone in middle measuring 5" x 2" x 1". There was fracture of skull bone and rupture of durameter under the fractured portion. Clotted blood found adherent to the brain substance underlying the fracture. 2) Another incised would over the scalp and underlying bone anterior-posterior direction placed over middle of skull covering occipital bone in middle measuring 5" x 2" x 1". There was fracture of skull bone and rupture of durameter under the fractured portion. Clotted blood found adherent to the brain substance underlying the fracture. Both the wounds were antemortem in nature and caused by heavy sharp-cutting weapons like axe and daos and the death, in my opinion, was due to syncope as a result of the injuries, sustained which were individually sufficient to cause the death in the ordinary course of nature." PW-11 also held autopsy over the dead body of Ruplekha Konwar and found as follows:- "1) One incised would over the face involving right side of chin, cheek and right temporal area cutting the underlying bones, mandible, right maxilla and right temporal bones measuring 8" x 2" x 1". 2) Another incised wound over the face covering chin, upper lib, right base of nose and forehead fracturing the underneath bone of mandible and frontal bone. 3) One incised wound over face covering the chin and left cheek causing fracture of the mandible and left maxilla making a wide gap of the wound measuring 6"x2"x2". 4) One incised wound over the right knee joint measuring 1" x 1" x 1" exposing the joint capsure and bones. 5) One penetrating wound and on the left lower chest, measuring 1"x2"x1". 6) One incised wound on the mid thigh anteriorly of the right side measuring 1" x ½"x 1". 7) Multiple bluish echymotic patches spreading all over the chest anteriorly. All the injuries were ante-mortem in nature. Injury No. 7 was caused by blunt weapon or blunt side of sharp weapon and all other remaining injuries, excepting injury No. 5, were caused by sharp cutting heavy weapon. Injury No. 5 was caused by pointed weapon like spear. The death, in my opinion, was due to syncope following 'torn' the above injuries which were sufficient to cause death in the ordinary course of nature." 5. In view of the overwhelming oral and medical evidence Mr J.M. Choudhury, learned counsel for the appellants has not challenged the fact that it is a case of homicide. The main thrust of the learned defence counsel is that the prosecution has failed to establish the involvement of the two accused-appellants in killing of the deceased Kunti and Ruplekha. In view of the overwhelming oral and medical evidence Mr J.M. Choudhury, learned counsel for the appellants has not challenged the fact that it is a case of homicide. The main thrust of the learned defence counsel is that the prosecution has failed to establish the involvement of the two accused-appellants in killing of the deceased Kunti and Ruplekha. 6. In the present case, the prosecution examined as many as 4 eyewitnesses including the approver Gautam Borgohain PW-8. On perusal of evidence of PW-8, it is seen that this witness has deposed about the involvement of other accused persons in the occurrence and he has resiled from his earlier statement recorded before the Magistrate vide Exbt-8. He did admit about his earlier statement, but instead of being an accomplice, he now projected himself to be a by-stander and an eyewitness of the incident. The learned Public Prosecutor submitted that this PW-8 has not given a faithful and true statement of the occurrence. This may be the reason that PW-8 was not cross-examined by the defence and we also find that the trial Court also did not act on the evidence on this witness. 7. Out of 3 eyewitnesses, PW-6 is Monoranjan Konwar, the son of deceased Kunti Konwar and brother of deceased Ruplekha. He has deposed that at the relevant date, he himself his mother, sister and Anuja Gogoi, PW-4 were in the house. His sister Ruplekha (since deceased) was studying at Gauhati University (MA Course) and on that date, she was due to leave for Gauhati by night bus leaving Shivsagar at about 8 p.m. As he was to accompany his sister to Shivsagar town, Ranjib Hazarika, PW-5, a young boy of 15 years of age who was a plougman in the house of Lalit Borgohain was asked to sleep in their house for the night and accordingly PW-5 was staying in their house. Having arrived at about 4 p.m. Around 6 p.m., they heard halla in front of their house and saw a mob of 50/60 people coming towards their house. The mob broke open their gate, pelted stone on their house. They also damaged the car standing in front of the garrage. PW-6 looked through the window and recognised the co-villagers, who were armed with dao, lathi etc. The mob broke open their gate, pelted stone on their house. They also damaged the car standing in front of the garrage. PW-6 looked through the window and recognised the co-villagers, who were armed with dao, lathi etc. Seeing the mood of the crowd, all of them entered into the mother's room which was situated behind the drawing room and they closed the door. Accused-appellants Priya, Kumud and PW-8 Gautam came through the back verandah and demanded that their father Haren Konwar be brought out and when they replied that Haren was not in the house, they demanded that the door be open. Initially, they refused to open the door, but on assurance being given, the door was open. Two accused-appellants, thereafter, asked the deceased to beg apology and accordingly the deceased Kunti and Ruplekha touched the feet of the accused persons by kneeling down. At that time, the father of the two accused-appellants Dimbeshwar Borgohain arrived at and asked the accused-appellants to kill them and thereafter, the two accused-appellants who were armed with dao and lathi hacked his mother and sister. Out of fear, PW-6 took shelter below the bed and PWs-4 and 5 hide themselves besides the wall. Thereafter, the accused-appellants went away. PW-6 brought some water and pour on the head of his mother and sister but to no effect. Thereafter, PWs, 4,5 and 6 went to the house of Luhit Borgohain seeking shelter, but the latter refused. Leaving PWs 4 and 5 under a bamboo tree, PW-6 came to Nazira Police Station. On the way, he met Purna Handique, Azom Ali and Rabin Borgohain and brought them along with him to the Police Station where he informed about the incident. The Police accompanied him to the place of occurrence and there they found the mother and sister dead. PW-6 then lodged the FIR. 8. PW-4 was a young girl aged about 10 years at the time of occurrence. The deceased Kunti was a school teacher and she was the elder sister of PW-4's mother. PW-4 was staying in the house of Kunti to prosecute her studies and at the relevant time she was the student of Class-V. PW-4 has fully supported the evidence of PW-6. She has identified Dimbeshwar Borgohain the old man who instigated the others to kill Kunti and Ruplekha. PW-4 was staying in the house of Kunti to prosecute her studies and at the relevant time she was the student of Class-V. PW-4 has fully supported the evidence of PW-6. She has identified Dimbeshwar Borgohain the old man who instigated the others to kill Kunti and Ruplekha. According to her, on being instigated, 2/3 persons had assaulted Kunti and Ruplekha with dao and axes. She has, however, not named the two accused-appellants. 9. PW-5 is another young boy, who was working as a ploughman in the house of a neighbour Lalit Borgohain. He came to the house of the informant to stay there for the night as there will be no other male member present because PW-6 was to come to Shivsagar to see off his sister. This witness has given a detailed statement as to how the entire occurrence took place and supports and corroborates the statements of PWs 4, and 6. 10. In view of the evidence of 3 eyewitnesses, it is well established that the occurrence took place in the manner as stated by the prosecution witnesses who were in the place where Kunti and Ruplekha were killed by the two appellants. So far PW-4 is concerned, she did not identify the appellants and she did not name them before the Investigating Officer (IO). Considering her age, it was quite natural. So far the PW-5 is concerned, he has recognised and identified the appellant Kumud and the name of the second accused was stated in his statement before the Court. This witness knew the accused Kumud by name from before. However, the accused-appellant Priya was identified by this witness for the first time during trial only. Learned counsel for the appellants has, therefore, submitted that identification of the accused for the first time at trial is a weak evidence. In this case, the investigating Police Officer in his wisdom did not pray for holding any Test Identification (TI) parade. The manner in which the investigation was held and the conduct of the Investigating Police Officer cannot be said to be above board because of the way in which he conducted himself or carried out the investigation. A bare perusal of evidence of this witness given before the trial Court will show that the IO. Hadi Hussain and the Officer-in-Charge, Naziram Police Station at the relevant time was favourably disposed towards the accused-appellant. A bare perusal of evidence of this witness given before the trial Court will show that the IO. Hadi Hussain and the Officer-in-Charge, Naziram Police Station at the relevant time was favourably disposed towards the accused-appellant. The present occurrence was a sequel to an earlier incident that took place on that date around 5.30 p.m. wherein one Samarjit was allegedly assaulted by Bipin Borgohain. It may be mentioned here that the above incident took a political turn as Samarjit belonged to AGP whereas the alleged assailant Bipin belonged to Congress(I). The incident took place just after the AGP Government came into power after the 1985 elections. The deceased Kunti was a Congress(I) supporter whereas the accused-appellants were all AGP supporters. They did not like the conduct of the Congress(I) supporters during the Congress regime and when on 21.1.86 one AGP supporter Samarjit was assaulted by a Congress(I) supporter, the mob took law into their hands to punish the Congress(I) people and accordingly ransacked the house of Bipin and set the same on fire and thereafter the mob went towards the house of PW-6 and the present incident took place. The Investigating Police Officer made a GD entry regarding the assault on Samarjit Borgohain, but when PW-6 went to the Police Station and informed about the fatal assault on his mother and sister, no GD entry was made and he merely accompanied him to the place of occurrence where the FIR was lodged. In his cross-examination, PW-12 the Investigating Police Officer has deposed about certain things which is not based on record. He stated that while the informant Monoranjan Konwar reported the matter about the incident, he was not aware that his mother and sister had been murdered. The above statement is not admissible as PW-4 cannot depose about the knowledge of PW-6. Moreover, it is a direct contradiction to his earlier statement that he was informed that the house of Haren has been ransacked and a car was damaged and two ladies were killed. However, non-holding of T.I. parade is not fatal as because T.I. parade is not a substantial evidence, but holding of T.I. parade is a safe rule of evidence and can be used for corroborative purposes. (The State of H.P.-Vs-Lekh Raj, (2000) 1 SCC 247 ). 11. However, non-holding of T.I. parade is not fatal as because T.I. parade is not a substantial evidence, but holding of T.I. parade is a safe rule of evidence and can be used for corroborative purposes. (The State of H.P.-Vs-Lekh Raj, (2000) 1 SCC 247 ). 11. The evidence of record shows that although there was electrification in the village, at the relevant time, but the power was off and as such as submitted by the learned counsel for the appellants, there was no scope for identification of the accused-appellants as the incident took place after 6 p.m. and that too, in a room. The prosecution evidence shows that a lamp was burning in the room because of power cut but at the start of the assault, the said lamp was damaged by throwing a stone. No witnesses have claimed that they recognised the appellants by the light of the said lamp. However, all the witnesses have categorically stated that it was a moon lit night and they recognised the accused persons by that light. The accused persons were all co-villagers and as such they were known faces. The room had a glass window and the incident took place as soon as the door at the back verandah opened. There was no cross-examination whatsoever as regards the statement of the witnesses that it was a moon lit night. Moreover, in the said room there were only 8 persons including the two deceased ladies, two appellants, accused Dimbeshwar (since deceased) and the 3 eyewitnesses, namely, PWs 4,5 and 6. The entire mob of 50/60 did not enter into the house of the informant by breaking open the gate. The prosecution witnesses very categorically stated that the two appellants only entered into the room where the helpless inmates of the house took shelter to save themselves from ire of the mob. 12. In this case, PWs 4, 5 and 6 have been cross-examined at length, but nothing has come out to show that they were deposing falsely or they concocted a story of the incident. The witnesses have supported each other on material points. PWs 4 and 5 were young boys and girls and as such nothing much can be read in their evidence when they stated that they could not say that wherefrom PW-6 came out after the incident. The witnesses have supported each other on material points. PWs 4 and 5 were young boys and girls and as such nothing much can be read in their evidence when they stated that they could not say that wherefrom PW-6 came out after the incident. PWs 4 and 5 were also hiding themselves behind the almirah in the room wherefrom they saw the incident. Likewise, PW-6 also hid himself under the bed. Naturally, after witnessing such ghastly attack on the deceased, PWs-4 and 5 cannot be expected to remember each and every details of the incident and where the PW-6 was at the relevant time and from where he came out. At this stage, we are tempted to re-capitulate the observations of the Apex Court in the case of Leela Ram-Vs-State of Haryana reported in (1999) 9 SCC 525 . The Apex Court observed as follows:- "11. The Court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some other run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. 12. It is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence though not however in the absence of the same. 13. In this context, reference may be made to the decision of this Court in the case of Appabhai-Vs-State of Gujarat wherein this Court in para 11 of the report observed : (SCC pp. 13. In this context, reference may be made to the decision of this Court in the case of Appabhai-Vs-State of Gujarat wherein this Court in para 11 of the report observed : (SCC pp. 245-46) Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village like, towns or cities. One cannot ignore his handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not reach in a normal manner. Nor do they react uniformly. The borrow stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In para 13 of the Report this Court further observed: (SCC pp. 246-47) The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may given due allowance. The Court by calling into aid vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy." 13. In the present case, the statement of PW-6 himself is that he did himself under the bed when the accused persons started to assault his mother and sister. There is some discrepancy regarding the exact time when PW-6 went below the bed but that is not material as it cannot be said that this person will not be able to witness the incident while hiding himself below the bed and when the incident had taken place in the room itself. 14. Further, we find that the presence of PWs 4, 5 and 6 at a place of occurrence at the relevant time was natural. PWs 4 and 6 were the inmates of the house where the incident took place and PW-5 came on being asked to stay for the night as the only male member was going out to see off her sister. 15. Mr Choudhury, learned counsel for the appellants has submitted that the present case rests on the solitary evidence of PW-6 and as such PW-6 who is not fully reliable as he has given discrepant versions as to when he hide himself below the bed. It is further stated that this witness admits that he was not sure whether accused Ajit was present in the room or not whereas in his earlier statement before the Police he stated about the presence of Ajit at the place of occurrence. The learned counsel has placed reliance on the decision of the Apex Court in the case of Anil Phukan-Vs-State of Assam reported in (1993) 3 SCC 282 wherein the Apex Court observed as follows:- "This case primarily hinges on the testimony of a single eyewitness Ajoy PW-3. Indeed, conviction can be based on the testimony of a single eyewitness, and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. Indeed, conviction can be based on the testimony of a single eyewitness, and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the Courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness, is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the Courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the Courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect. It is in the light of these settled principles that we shall examine the testimony of PW-3 Ajoy." 16. In the case of Marwadi Kishore Parmanand-Vs-State ofGujarat reported in (1994) 4 SCC 549 , the Apex Court elaborated the matter further as follows:- "12. In the said report this Court further pointed out that generally speaking, oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable, and (3) neither wholly reliable nor wholly unreliable. So far as the first category of proof is concerned, the Courts have no difficult in coming to its conclusion either way i.e. to say it may convict or may acquit on the testimony of the single witness, if his testimony is found to be above approach or suspicion of interestedness, incompetence or subordination. In the case of second category of the witness, the Court has equally no difficulty in coming to the conclusion. But in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. Most often there are situations where only a single person is available to give evidence in respect of a disputed fact. Naturally in such a situation the Court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. Naturally in such a situation the Court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. It is no doubt true that in the present case the prosecution case rests on the testimony of the sole eyewitness, namely, Ranchhodbhai, PW-1 and, therefore, we shall examine his testimony with greater care and caution and in accordance with the principles enunciated for appreciation of the evidence of single witness with a view to see whether the High Court while reversing the order of acquittal has acted within the judicial constraints and the principles stated above." 17. In this case, we find that the 3 eyewitnesses, namely, PWs 4,5 and 6 were in the room when the incident took place. Their presence was natural. The minor inconsistency in their statements show that the witnesses were telling the truth and they had not tried to put embroidery to the actual version. The evidence are consistent and substantially confirm the prosecution version of the occurrence as placed before the Court. We find absolutely no valid reason or justification to view the evidence of PW-6 with any suspicion. He is the son/ brother of the two deceased and there is no reason to believe that he will falsely implicate the two accused-appellants. Admittedly, he had no animus with the accused-appellants and the name of the appellants finds place in the FIR which was lodged immediately after the incident. The trial Court placed reliance on the prosecution evidence and in view of our foregoing discussions and decisions, we hold that the learned trial Court rightly convicted the two appellants for the offence under Section 302/427, 34 IPC. 18. For the reasons stated above, the appeal has no merit and the same is accordingly dismissed.