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2002 DIGILAW 447 (GAU)

Kuldip Chandra Talukdar v. State of Assam

2002-10-11

AMITAVA ROY, P.P.NAOLEKAR

body2002
AMITAVA ROY, J.: This appeal is directed against the judgment and order dated 12.6.2001 passed by the learned Sessions Judge, Kamrup in Sessions Case No. 100(K) of 1997, convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer R.I. for another three months. 2. We have heard Mr J.M. Choudhury, senior advocate assisted by Mr B.M. Choudhury, advocate for the appellant and Mr P. Gayan, PP, Assam. 3. The case of the prosecution in short is that on 12.11.96, one Anita Das, PW-2, lodged an FIR with the Officer-in-Charge, Hajo Police Station alleging that on 10.11.96 at about 10.30 p.m. the accused appellant and two others (named therein) came to the gate of their house, armed with iron rods, with a view to kill the members of her family out of previous grudge over a pending litigation involving land. They abused the inmates of the house in filthy language, at the same time loudly striking the boundary wall of the house/On hearing this, the elder brother of the informant, Dakshya Raj Kumar came out of the house and asked them to stop the nuisance, whereupon the accused appellant, at the instance of his companions hit him on the head with an iron rod causing grievous injury making him unconscious. The injured was then taken to Hajo Primary Health Centre in a seriously injured condition, whereafter he was removed to the Gauhati Medical College Hospital, Guwahati and thereafter, on medical advice to the Neurological Nursing Home, Guwahati where he was under going treatment. It was mentioned in the FIR that it could not be lodged earlier as all concerned were busy in making arrangement for the treatment of the injured. 4. On receiving the FIR, the police registered Hajo PS Case No. 230/96 under Section 325 IPC and started the investigation. In the meantime, during the investigation, the injured succumbed to the injuries sustained and therefore, the police added Section 302 IPC in the tally of the offences. On completion of investigation, the police submitted charge-sheet against the accused appellant under Section 302 IPC. The case being one exclusively triable by the Court of Sessions, it was committed to the Court of the Sessions Judge, Kamrup, Guwahati. On completion of investigation, the police submitted charge-sheet against the accused appellant under Section 302 IPC. The case being one exclusively triable by the Court of Sessions, it was committed to the Court of the Sessions Judge, Kamrup, Guwahati. The accused appellant was charged under Section 302 IPC to which he pleaded 'not guilty'. The prosecution thereafter, examined 17 witnesses including the Doctor and the Investigating Officer. On the completion of the recording of the evidence of the prosecution witness, the accused appellant was examined under Section 313 Cr. PC. Eventually by the impugned judgment and order, the accused appellant was convicted and sentenced as above. Mr Choudhury, learned senior counsel for the accused appellant has argued that the so-called eyewitnesses in the case namely, PW-1 and PW-2 are the sisters of the deceased and being related witnesses they are not reliable and the learned Court below erred in law and on facts in basing the conviction on their evidence. He further submitted that, there were vital omissions in their statements before the police in course of the investigation which rendered their evidence in course of the trial wholly untrustworthy. He argued that the evidence of PW-4 is also not reliable, inasmuch as, though in his evidence on oath in trial, he claimed to have witnessed the incident, in view of vital omissions made by him in his statements before the police, it is apparent that he was not an eyewitness of the alleged occurrence. The learned senior counsel contended that the police investigation failed to connect the accused appellant with the incident and the statements made by the witnesses namely, PW-1, PW-2 and PW-4 in trial were improvements only to some how implicate the accused appellant in the offence. Referring to the evidence of PW-1 and PW-2 and the sketch map, Ext. 7 prepared by the I.O., the learned senior counsel argued that having regard to the place of occurrence shown in the sketch map, it was impossible for the said, witnesses to have witnessed the incident and on that ground alone their evidence to that effect is liable to be discharged. 7 prepared by the I.O., the learned senior counsel argued that having regard to the place of occurrence shown in the sketch map, it was impossible for the said, witnesses to have witnessed the incident and on that ground alone their evidence to that effect is liable to be discharged. Criticising the impugned judgment and order is illegal and not sustainable in law, the learned senior counsel contended that the ^findings and conclusions recorded by the learned trial Court are not based on a proper appreciation of the evidence on record and being perverse are liable to be set aside. He further argued that had the incident taken place at the spot as alleged by the prosecution, having regard to the nature of injuries sustained by the deceased, there would definitely had been blood marks at the place of occurrence, but the sketch map prepared by the I.O. does not indicate the same. The learned senior counsel, therefore, contended that this is also a circumstance, which belies the prosecution case. According to him, the prosecution and failed to prove the charge against the accused appellant beyond reasonable doubt and therefore, the impugned judgment and order is liable to be interfered with. The learned senior counsel in support of his submissions placed reliance on a decision of the Apex Court reported in AIR 1978 SC 59 , Birendra Singh and others, appellants-Vs-State of Uttar Pradesh, respondent. 5. As against this, Mr Cyan, learned PP, Assam, while supporting the- findings recorded by the learned trial Court submitted that the evidence of PW-1, PW-2, PW-4, PW-5 and PW-15 if taken together, it is amply clear that the charge of murder against the accused appellant had been established beyond reasonable doubt. He contended that, PW-1, PW-2 and PW-4 are the eyewitnesses of the incident and that their evidence is not liable to be thrown out only because of some minor omissions, inconsistencies and contradictions. He argued that the evidence of the above witnesses taken as a whole demonstrated that it was the accused appellant who had inflicted the murderous assaults on the deceased, and that therefore, the learned trial Court was perfectly justified in recording its finding of conviction against him. 6. Before dealing with the rival contentions as above, it would be appropriate to analyse in brief the evidence on record. 7. 6. Before dealing with the rival contentions as above, it would be appropriate to analyse in brief the evidence on record. 7. Smti Gita Rani Das, PW-1 is the sister of the deceased, She stated that on 10.11.96 at about 10 p.m. she along with Anita Das, PW-2 were preparing to go to sleep after the meal. In the meantime, the accused appellant stated shouting from outside the campus of their house, asking her brother Pradip to come out. He thereafter, entered the compound and started accusing the inmates of the house in abusive language and at the same time hitting a rickshaw parked there. The witness and her sister Anita being unable to tolerate the abusive words came out of the house. They also saw Haribilash, elder brother of the accused appellant and one Kashiram on the road. At that time their (witnesses) brother Dakshyaraj also came out hearing the altercation. Immediately, thereafter, the accused appellant and his elder brother Haribilash dragged him towards the road. When the witness and her sister followed him, they saw accused appellant assaulting Dakshyaraj on his head with iron rod and her brother was in a pool of blood. The injured was then taken to Hajo Medical Hospital by Nripen Baruah, PW-4 and Harbilash Bezbaruah, PW-5 seeing the serious condition of the injured, he was referred to the Gauhati Medical College, Hospital and ultimately to the Neurological Centre at Dispur, Guwahati. The witness stated that her brother expired on 14.11.96 at about 8.45 p.m. She denied the suggestion that she had not stated before the police that she saw accused Harbilash and Kuldip Talukdar dragging her brother and that thereafter, Kuldip had assaulted her brother with iron rod on his head. 8. PW-2, Anita Das, sister of the deceased stated that on 10.11.96 at 10 p.m. she along with her sister, PW-1 and deceased brother Dakshyaraj were in the house. At that time, the accused appellant came near the house and shouted from the road to Pradip (brother of the witness) to come out from the house, then the witness and PW-1 came out of the house towards the road. Her deceased brother followed them. Then, the accused appellant and his brother Harbilash dragged her brother towards the road from the House. One Kasiram was also with the accused appellant. Her deceased brother followed them. Then, the accused appellant and his brother Harbilash dragged her brother towards the road from the House. One Kasiram was also with the accused appellant. The accused appellant then gave two blows on the head of her brother with an iron rod and then fled away from the place of occurrence. Her brother Dakshyaraj was in a pool of blood. He was taken to the Hajo Medical Hospital where from he was shifted to GMC, Hospital, Guwahati and finally to the Neurological Centre, Dispur, Guwahati where he succumbed to his injuries on 14.11.96. The witness proved Ext.l, the FIR with Ext. 1(1) as her signature. In cross-examination, the witness stated that there was a village road in front of her house. In front of the road running towards the school are the houses of Naren, Achyut and Nripen. She further stated that deceased was running in an injured condition on the road which leads towards the school. She denied to have stated before the police that her brother went to the road in search of Pradip and that she along with her sisters were standing inside their compound when they heard hue and cry from the road leading to the school and after they heard that Dakshyaraj had been assaulted by the accused appellant, she along with her sisters went running towards that place and saw injuries on the head of Dakshyaraj who was lying in a pool of blood. 9. PW-3, Smti Giriza Das stated in her evidence that she did not know anything about the occurrence. 10. PW-4, Nripen Baruah stated that on 10.11.96 at 9.30/10 p.m. while he was standing in front of his house, he saw accused appellant assaulting Dakshyaraj on his head with a wooden stick. As Dakshyaraj collapsed, he rushed to him and found blood oozing out from his head. He took the injured to Hajo, Public Health Centre with the help of one Harbilash Rajbongshi. In cross-examination, the witness stated that when he saw accused appellant assaulting Dakshyaraj there were other people also. He (witness) stated that Dakshyaraj was assaulted in front of his house on the main road. He took the injured to Hajo, Public Health Centre with the help of one Harbilash Rajbongshi. In cross-examination, the witness stated that when he saw accused appellant assaulting Dakshyaraj there were other people also. He (witness) stated that Dakshyaraj was assaulted in front of his house on the main road. He denied to have stated before the police that he had not heard any scream and that he went out from his house and found Dakshyaraj lying in a pool of blood, and he heard from others that the accused appellant had assaulted the injured. 11. PW-5, Harbilash Bezbaruah stated that in the Diwali night in the year 1996, on hearing a noise, he came out of the house and found Dakshyaraj coming out of his house with two sisters Gita Rani and Anita. He also saw the accused appellant going ahead of him, the witness, further, stated that he had then seen Nripen Baruah and Gautam Kumar escorting Dakshyaraj towards his house. He also saw blood oozing out from the head of Dakshyaraj. He then along with Nripen took Dakshyaraj to the hospital. The witness stated that at the place of occurrence that night there was poor vision. 12. PW-6 is only a witness of the inquest report, Ext. 2. 13. Dr H.K. Mahanta, PW-7 had conducted the post-mortem examination on the deceased. The following are the injuries found by him on the dead body: "Injuries: 1. Abrasion 8x2 cm back of left arm. 2. Abrasion 1 cm x 1 cm x 1 cm back of left elbow. 3. Abrasion front of right knee. 4. Lacerated wound 4.5 cm in length, scalp deep found stitched with five stitching present on right frontal area vertically placed 3 cms left from midline and 5.5 cms above the eye brow. 5. Contusion 5 x 3 cm left frontal partial area 6 cms left from mid-line. 6. Incised wound 'U' shaped 20 cms long bone deep with 33 stitches on left frontal parital and temporal area, the anterior end is 5cm above the eye brow and 3 cm left from midline and posterior and is 2 cm above the left ear. 7. Skull:- One oval shaped fracture present on left frontal, parital and temporal bone found missing. Incised wound 'U' shaped 20 cms long bone deep with 33 stitches on left frontal parital and temporal area, the anterior end is 5cm above the eye brow and 3 cm left from midline and posterior and is 2 cm above the left ear. 7. Skull:- One oval shaped fracture present on left frontal, parital and temporal bone found missing. Two barhole mark present on the posterior aspect - The gap measures 8cm x 5cm with portion of bone 4 x 1 cm adjacent to frontal bone is missing (depressed). 8. Extended fracture of the (sutural fracture) left and right side of the skull along the coronal (fronto parital) suture 17 cms long present. Membrane - congested, small fragments of extradural haemorrhage present on left fronto parital and temporal area. 9. Subdural haemorrhage present on both sides. Brain-congested. 10. Lacerated wound 3^x 1 x 1 cm of frontal areas left side just underneath the anterior part of the oval fracture. Contusion 6 x 5 cms of the frontal and parital areas present Spinal cord-not examined. All other organs are healthy." 14. According to the Doctor, death occurred due to coma resulting from head injury. 15. PW-8, Satya Ram Das stated that he had provided the car to take the injured to the hospital. 16. PW-9, Chakradhar Das stated that at 11/11.30 p.m. in the Diwali night, his sisters Gita and Anita came crying and informed him that the accused appellant had assaulted Dakshyaraj. 17. PW-10, PW-11, PW-12 did not say anything about the occurrence. 18. PW-13, did not see the occurrence. He was only present when the accused appellant had accompanied the police to the place of occurrence where he (accused appellant) admitted that he had a quarrel with Dakshyaraj and that he had assaulted him. 19. PW-14, only stated that he had come to learn that there was an incident of assault. He was declined hostile by the prosecution. 20. PW-15, Jayanta Das, stated that the accused appellant, after his arrest was brought to the village by the police and he was also present then. The accused appellant admitted that he had assaulted Dakshyaraj. 21. PW-16, Lakhidhar Choudhury, Investigating Officer, who had submitted the chargesheet, proved Ext. 1, the FIR and Ext.7, the sketch map of the place of occurrence prepared by him. In his cross-examination he had stated that the place of occurrence was shown as "Kha". The accused appellant admitted that he had assaulted Dakshyaraj. 21. PW-16, Lakhidhar Choudhury, Investigating Officer, who had submitted the chargesheet, proved Ext. 1, the FIR and Ext.7, the sketch map of the place of occurrence prepared by him. In his cross-examination he had stated that the place of occurrence was shown as "Kha". He stated that he had recorded the statements of witness of Gita Rani Das, PW-1 as follows: "My name and address are as above. My present age is 25 years. My statement is similar to the one made by my sister Anita. She has said everything. I have nothing else to say. Whatever she has said is true." 22. He further, stated that the said witness did not tell him that the accused appellant and Harbilash had dragged her brother and that there upon the accused appellant had hit her brother on the head with an iron rod. The witness, further, stated that the PW-2 did not tell him that Harbilash had taken her brother away. She also did not mention about Kashiram before him. The witness also stated that PW-4 did not tell him that on hearing a commotion, he came out of the house and had seen the accused appellant assaulting Dakshyaraj and that the latter was lying smeared with blood. 23. PW-17, Sarat Ch. Nath is the police officer who had done the preliminary investigation in the case and had amongst others conducted the inquest of the body. He proved inquest report Ext. 2. The said witness, however, did not record the statements of any witness. 24. That the deceased, Dakshyaraj had died of the injuries sustained by him as recorded by PW-7 in the post-mortem report and as narrated by him in his evidence has been established. According to the prosecution, the injuries were sustained by the deceased out of the assaults made by the accused appellant on 12.11.96 at 10/10.30 p.m. PWs 1, PW-2 and PW-4 are said to be the eyewitnesses of the incident. The categorical evidence of PW-1 is that the accused appellant and his brother Harbilash had dragged the deceased towards the road and when she along with her sister PW-2 followed them, they saw accused appellant assaulting their brother on the head with an iron rod. The categorical evidence of PW-1 is that the accused appellant and his brother Harbilash had dragged the deceased towards the road and when she along with her sister PW-2 followed them, they saw accused appellant assaulting their brother on the head with an iron rod. PW-2,, in her evidence on oath while substantially corroborating her sister PW-1 also mentioned about Kashiram along with the accused appellant and Harbilash. In cross-examination, she conceded that she did not mention in the FIR that her brother was dragged by the accused appellant towards the road before the assault. PW-16, with reference to the statements recorded by him in course of the investigation confirmed that PW-1 did not tell him that the accused appellant and Harbilash had dragged her brother and that thereafter the accused appellant had hit her brother on the head with an iron rod. He further; confirmed that PW-2, Anita Das did not tell him that the accused appellant and Harbilash had taken her brother away and that infact the said witness did not mention about Kashiram and Harbilash before him. The defence however, failed to confront the Investigating Officer with the other statements made by PW-2, Anita Das before him in order to show that the witness PW-2 had not seen the incident. 25. PW-4, in his evidence had stated categorically that he had seen the accused appellant assaulting Dakshyaraj on his head with a wooden stick on the date of the occurrence. He stated that the incident had taken place in front of his house. PW-16, the Investigating Officer confirmed with reference to his case diary that this witness i.e. PW-4 did not tell him that he had seen accused appellant assaulting Dakshyaraj. In this view of the matter, we feel that it would be unsafe to rely on the evidence of PW-4 as a witness of the incident. This is a vital omission on the part of the witness which affects his credibility as an eyewitness and the learned trial Court, therefore, rightly did not take into consideration his evidence implicating the accused appellant as the assailant in the present case. Amongst the other witnesses, PW-13 and PW-15 have stated that they were present when the accused appellant had been brought to the place of occurrence by the police and that he (accused appellant) had admitted that he had assaulted Dakshyaraj. 26. Amongst the other witnesses, PW-13 and PW-15 have stated that they were present when the accused appellant had been brought to the place of occurrence by the police and that he (accused appellant) had admitted that he had assaulted Dakshyaraj. 26. In view of the state of evidence as above, the prosecution case therefore stands or falls with the evidence of PW-1 and PW-2. Much stress was laid by the learned senior counsel for the petitioner on the omission, on the part of the Investigating Officer to mention about the blood marks at the place of occurrence, PW-16, the Investigating Officer, who had prepared the sketch map stated that he had visited the place of occurrence for the first time on 15.11.96 and had prepared the sketch map then. The incident had taken place on 10.11.96. It is therefore, not unlikely that after five days of the incident no blood mark was noticeable at the place of occurrence. We do not think therefore, that the omission on the part of the Investigating Officer to mention about the presence of blood marks at the place of occurrence is such a fatal infirmity so as to render the prosecution case unworthy or credit. The decision of the Apex Court, in Sir Singh (supra) turns on the facts of that case and is distinguishable on facts from the case in hand. Moreover, the Apex Court in that decision did not lay down as a proposition of law that whatever be the facts and circumstances of a case, in every case of cut or gun shot injuries, if there is no mention of any blood mark in the sketch map at the place of occurrence, the prosecution case on that count alone becomes unacceptable. We, are, therefore, unable to uphold the contention of the learned senior counsel for the appellant in this regard. 27. In the FIR, it was mentioned that the accused appellant had assaulted the deceased with an iron rod on his head. The presence of Harbilash Talukdar and Kashiram Das was also mentioned therein. In the FIR of course it was not stated that the accused appellant along with Harbilash had dragged Dakshyaraj from the compound of his house to the road before being assaulted. An FIR need not contain minutest details of the incident reported thereby. The presence of Harbilash Talukdar and Kashiram Das was also mentioned therein. In the FIR of course it was not stated that the accused appellant along with Harbilash had dragged Dakshyaraj from the compound of his house to the road before being assaulted. An FIR need not contain minutest details of the incident reported thereby. The substance of the information in the FIR was that the accused appellant had assaulted Dakshyaraj on the road with an iron rod and that Harbilash and Kashiram were present at the place of occurrence. From the statements of PW-1 and PW-2 before the police, it appears that they omitted to mention that before the assault the accused appellant and Harbilash had dragged their brother from the compound of their house to the road. In view of the fact that the FIR mentioned about the presence of Harbilash and Kashiram at the place of occurrence and that PW-1 and PW-2 in their deposition have also mentioned about the presence of the said two persons, we do not consider that the omission on the part of the said witnesses to mention about the fact of dragging of the deceased by accused appellant and Harbilash in their statement before the police is so serious an omission so as to destroy the prosecution case. We have set out the statements made by PW-1 before the police. She had only reiterated the statements made by PW-2 before it. The defence while confronting the Investigating Officer did not bring out that PW-2 had omitted to state before the police that accused appellant had assaulted Dakshyaraj. In that view of the matter, having regard to the statement made by PW-1 to the police as quoted above the so-called omission on her part to state that the accused appellant had assaulted Dakshyaraj cannot efface her evidence on oath wholly. PW-1 and PW-2 according to their testimony were together at the time of the incident and they corroborated each other on material particulars relating to the incident. Both these witnesses have been categorical in their evidence to the effect that it was the accused appellant who had assaulted their brother Dakshyaraj. 28. Having regard to the evidence of PW-1 and PW-2, we are of the opinion that the prosecution case is not liable to be rejected in view of the above inconsistencies, contradictions and omissions. Both these witnesses have been categorical in their evidence to the effect that it was the accused appellant who had assaulted their brother Dakshyaraj. 28. Having regard to the evidence of PW-1 and PW-2, we are of the opinion that the prosecution case is not liable to be rejected in view of the above inconsistencies, contradictions and omissions. In their evidence as above, the said two witnesses have proved the involvement of the accused appellant in the incident. The charge-sheet was submitted against the accused appellant and he had been charged under Section 302 IPC for committing murder of Dakshyaraj. PW-1 and PW-2 have categorically stated that they had seen the accused appellant assaulting their brother with an iron rod on the head. The medical evidence supports the fact that the injured died out of the head injury sustained by him. The opinion of the Doctor that is with the ocular evidence in the case in hand. 29. The Apex Court in its recent decision reported in (2002)6 SCC 81 , Krishna Mochi and others, appellants-Vs-State of Bihar, respondent, held that in a criminal trial, even if a major portion of the evidence is found to be deficient, in case the residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open for the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or a material particular would not ruin the prosecution case from the beginning to the end, it observed. The Apex Court, further held that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment and an attempt has to be made to separate the grain from the chaff, the truth from falsehood. Commenting on the duty of the Court in a criminal trial, it observed that some discrepancies are bound to be there in each and every case which should not weigh with the Court of long those do not materially affect the prosecution case. Commenting on the duty of the Court in a criminal trial, it observed that some discrepancies are bound to be there in each and every case which should not weigh with the Court of long those do not materially affect the prosecution case. In case, the discrepancies pointed out are in the realm of pebbles, the Court should tread upon it, if the same are boulders, the Court should not make an attempt to jump over the same. In this context, the Apex Court referred to its observation in its earlier decision rendered in Inder Singh (State) Delhi Administration (1978) 4 SCC 161 to that effect that proof beyond reasonable doubt is a guideline, not a fetish and a guilty man cannot get away with it because truth suffers from some infirmity when projected through human process. 30. In the case in hand, the evidence of PW-4 and PW-5, who had taken the injured to the hospital immediately after the incident cannot be ignored. The evidence of PW-13 and PW-15 who were present when the accused appellant was brought to the place of occurrence by the police and their statement that the accused appellant had admitted before all persons that he had assaulted Dakshyaraj cannot also be left out of consideration totally. We find from the charge-sheet that the police had not sent up Harbilash and Kashiram for trial for want of evidence of their involvement in the act of assault. Having regard to the evidence of PW-1, PW-2, PW-4, PW-5, PW-7, PW-13 and PW-15 together with the attending facts and circumstances of the case, we are of the opinion that to acquit the accused appellant in the case in hand would imply exaggerated devotion to the role of benefit of doubt by ignoring ground realities. 31. We are of the opinion that the prosecution has been able to prove the charge against the accused appellant. We have examined the judgment and order impugned in the appeal. We do not notice any perversity in approach of the learned trial Court in assessing the evidence and recording its findings and conclusions and we do not feel persuaded to interfere with the same. The appeal is without any merit and is thus dismissed.