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2008 DIGILAW 381 (GAU)

Santi Ram Deka v. State of Assam

2008-05-27

AFTAB H.SAIKIA, H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Appellant was an accused before the Ad hoc Additional Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 145 (DMFT)/2001. He was charged for an offence punishable under Section 302, IPC by the Ad hoc Additional Sessions Judge, Darrang, who found him guilty and convicted for the offence under Section 302, IPC to undergo life imprisonment and to pay a fine of Rs. 2,000/- in default R.I. for three months. 2. Feeling aggrieved by the judgment and order of conviction, so rendered by the learned Ad hoc Additional Sessions Judge dated 7.3.2002, appellant filed this instant appeal challenging its legality and correctness from Jail. 3. Briefly stated, the prosecution case runs as follows : Deceased Maniram Deka was the uncle of the appellant. Both the appellant and the deceased were in their paddy field and both came together home. While the deceased was busy in washing his hands and feet at the tube well, appellant suddenly came with an axe and dealt axe blows on the neck of the deceased causing deceased's instantaneous death near the tube well. It is to be noted that occurrence took place on 7.2.2001 at about 12 noon. The First Information Report, having been lodged by PW 4, Police registered a case under Section 302, IPC and commenced investigation. Circle Officer conducted inquest on the death body of the deceased. The dead body was thereafter sent for post-mortem examination. At the closure of the investigation, a charge-sheet was laid against the appellant under Section 302, IPC. Acharge was framed under Section 302, IPC. Appellant pleaded not guilty and claimed his trial. At the conclusion of the trial, appellant was convicted as above. 4. Argument was heard at length from Mr. S.C. Biswas, learned Amicus Curiae as well as Mr. K.A. Mazumdar, learned P.P. for the State of Assam. 5. Altogether six witnesses were examined to prove the charge under Section 302, IPC against the appellant. They are Dr. Kamala Kt. Goswami (PW 1), Surendra Deka (PW 2), Ajit Goswami (PW 3), NilaKt. Deka (PW 4), Mani Ram Deka (PW 5) and Gauri Kt. Kalita (PW 6). The trial Court also examined Smt. Sashi Prava Deka, daughter of the deceased as CW-1. They are Dr. Kamala Kt. Goswami (PW 1), Surendra Deka (PW 2), Ajit Goswami (PW 3), NilaKt. Deka (PW 4), Mani Ram Deka (PW 5) and Gauri Kt. Kalita (PW 6). The trial Court also examined Smt. Sashi Prava Deka, daughter of the deceased as CW-1. From the perusal of the evidence of the witnesses examined by the prosecution, it is noticed that PW 2, PW 3, PW 4 and PW 5 were not the eye-witnesses to the actual occurrence. All of them heard about the killing of the deceased by the appellant with the help of an axe. Therefore, the evidence of all the four witnesses named above can be termed as 'hearsay' in respect of the factum of killing of the deceased by the appellant. From their evidence, it is also found that after hearing the fact of killing, they all went to look at the deceased, and ascertain the truthfulness of the fact so reported to them. On their arrival, they saw cut injury over the neck of the deceased and also found tying up of the appellant by the villagers against an electric post. PW 2 Shri Surendra Deka also deposed that FIR being lodged, Police came for investigation and seized an axe vide Exhibit 2, the seizure memo in his presence, wherein he put his signature Exhibit 2(1). PW 5 Mani Ram Deka also affirmed by his evidence that police seized an axe vide Exhibit 2 wherein he too put his signature Exhibit 2(2). Factum of seizure of an axe has also been testified by PW 6 Gauri Kt. Kalita, the investigating officer of this case. 6. Therefore, from the testimony of the above four witnesses minus the 'hearsay' part we have found their evidence corroborative in the context of receipt of injury on the neck of the deceased and also to the factum of seizure of an axe by PW 6. Apart from that PW 5 Mani Ram Deka also speaks for about an extra judicial confession made by the appellant. This witness P W 5 in his evidence categorically stated that when asked, appellant told him that he cut the deceased. Apart from that PW 5 Mani Ram Deka also speaks for about an extra judicial confession made by the appellant. This witness P W 5 in his evidence categorically stated that when asked, appellant told him that he cut the deceased. This piece of extra judicial confession according to the learned Amicus Curiae cannot be taken into consideration and acted upon since P W 6 the investigating officer refused to support the evidence of PW 5 that PW 5 reported so while he was examined under Section 161 of the Cr. PC. In the context of making extra judicial confession by the appellant except the evidence of PW 5, no witness for the prosecution says so. Therefore, making of alleged extra judicial confession does not find support from the evidence of PW 6, the I.O. of this case, and that being so, no reliance can be adhered to and acted upon. 7. Now, the issue before us whether the testimony of PW 2 to PW 5 can be accepted and acted upon in the context of killing of the deceased by the appellant. Evidence of these witnesses as stated herein before are 'hearsay'. Acceptability of the hearsay evidence legs behind if the person from whom the witness has heard is not put into the witness box for cross-examination on oath by the prosecution by the adversary. 'Hearsay' sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares an information given by someone else. Although the term 'Hearsay' is excluded from the Act, it is in constant use in the law Courts. It has been said that there are important exceptions to the hearsay rule. The correct rule as to hearsay therefore is that statements, oral or written, reported to have been made by persons not called as witnesses are not admissible in evidence subject to certain exceptions. These exceptions are to be found in Sections17-39 in the Evidence Act. Admissions and confessions are exceptions to the hearsay rules. For acceptance of hearsay evidence, a duty is cast upon the prosecution to put a person from whom witnesses heard into the witness box for cross-examination on oath. If a person from whom the witnesses knows or heard is not put into the witness box. Admissions and confessions are exceptions to the hearsay rules. For acceptance of hearsay evidence, a duty is cast upon the prosecution to put a person from whom witnesses heard into the witness box for cross-examination on oath. If a person from whom the witnesses knows or heard is not put into the witness box. The fact so heard, therefore, cannot be accepted in evidence unless, the person from whom such fact/facts is/are heard is put to cross-examination on oath. 8. Here in the present case, though P W 2 to PW 5 alleged to have heard about the killing of the deceased by the appellant from someone, that someone was not put to cross-examination on oath. Therefore, in absence of their evidence, evidence of PW 2 to PW 5, in respect of killing of the deceased by the appellant is not admissible in evidence. The testimony of these witnesses in the context of witnessing the cut injury on the neck of the deceased and seizure of an axe by the investigating officer (PW 6), can, however, be accepted subject to scrutiny. 9. Death of the deceased is not a disputed fact. All witnesses examined by the prosecution testified that the deceased died as a result of injury sustained on his neck. For ascertainment of the nature of the injury whether the injuries are homicidal or suicidal, evidence of the doctor who conducted autopsy on the dead body of the deceased is required to be looked into. The doctor who conducted autopsy was examined as PW 1 by the prosecution. His categorical evidence is that on 8.2.2001, he was working as Deputy Superintendent at Mangaldoi Civil Hospital. On that day, he conducted post-mortem examination on the dead body of Moniram Deka, aged about 45 years at 12 noon being identified by Constable 1100 Dambaru Deka and relative Gunaram Deka and Nilakanta Deka in connection with Sipajhar P.S. Case No. 20/2001 and discovered the following : (1) Crack of left side front tooth (2) One cut mark on the left side of the neck with clear and regular margin involving underlying great vessels and casing (3) Fracture of the cervical vertebrae (4) One cut mark on the left temporal region 3 cm. x 3 cm. (depth) (5) One penetrating injury on the left temporal region deep into the cerebral cavity injuring the underlying brain matter. 10. x 3 cm. (depth) (5) One penetrating injury on the left temporal region deep into the cerebral cavity injuring the underlying brain matter. 10. It was opined by PW 1 that injuries sustained and discovered on the dead body of Moniram Deka were anti-mortem in nature and caused by sharp and pointed weapon. Caused of death was due to shock and haemorrhage as a result of injuries sustained. This witness was however not subjected to cross-examination by the defence. Therefore, from the testimony of PW 1, it can be found that Moniram Deka died as a result of sustention of injuries as aforesaid due to shock and haemorrhage. PW 1 specifically stated in his evidence that all the injuries were anti-mortem in nature. So there can be no second opinion that death was not homicidal. Now, at this stage, it would be a pertinent issue to be decided by us who caused the death of the deceased on the relevant date and time. We have already discussed herein before that in the context of involvement of the appellant in the killing of the deceased, evidence of P W 2 to PW 5 can be described as 'hearsay'. We have also come to the conclusion that since the prosecution failed to bring the person from whom the witnesses heard about the killing of the deceased by the appellant, their evidences are not admissible in evidence. In the situation we can look for other evidences if available on the record. CW-1 is the daughter of the deceased and she claimed herself to be an eye-witness. Her evidence as we have from the record is as follows : My father Maniram Deka died some one year ago. I know the accused. His name is Santiram Deka. I was in my house at the time of the occurrence. My father returned from the field at about 11 O'clock and went near the tube well to wash his feet. I was in the courtyard. While my father was washing his feet, Santiram dealt a cut blow in the neck of my father with an axe in his hands. My father fell down. I made a hue and cry. Upon watching such a scene I fell down and became unconscious. I witnessed with my own eyes Santiram dealing cut blow in the neck of my father. This piece of testimony remains unassailed in material particulars. My father fell down. I made a hue and cry. Upon watching such a scene I fell down and became unconscious. I witnessed with my own eyes Santiram dealing cut blow in the neck of my father. This piece of testimony remains unassailed in material particulars. In her cross-examination, it has been brought on to the record that since their family members went to 'Chapori' she was alone in their house and she did not attend her school on that day. Though some suggestions had been put to her regarding animosity in between them and the appellant in respect of landed property, the same was denied by this witness. In the same way, she also not denied that she did never witness the dealing of axe blow on the neck of her father by the appellant. Upon careful perusal of the testimony of this witness both examination-in-chief and cross-examination, we do not find any material discrepancy in regard to the fact of dealing of axe blow on the neck of the deceased by the appellant. Except this testimony, we do not come across any other testimony which can be regarded as testimony of an eye-witness. So we are to base on the testimony of CW-1 together with the testimony of PW 1 the doctor to arrive at a decision. From a conjoint reading of both the testimony of CW-1 and PW 1, we have received corroboration that the deceased received cut injuries on his neck which resulted to his death instantaneously. 11. Appellant was examined under Section 313 of the Cr. PC for the purpose of explaining the circumstances appearing against him in the evidence recorded by the trial Court. Only four questions were put to the accused/appellant under this provision. The most material questions put to the appellant are question No. 1 and question No. 3. In answer to the question No. 1 appellant specifically stated that he killed his uncle Maniram Deka by dealing cut blow on him with an axe. The third question put to him was as under "do you have anymore to say"? The appellant in answer to that particular question stated as under "I had petty quarrel with Maniram. On the date of occurrence also, while I was ploughing in field he threatened me over watering in the field. The third question put to him was as under "do you have anymore to say"? The appellant in answer to that particular question stated as under "I had petty quarrel with Maniram. On the date of occurrence also, while I was ploughing in field he threatened me over watering in the field. We returned home from the field together and when he went near tube well to wash himself, I dealt him a cut blow from the back side and he died. My parents, my siblings nobody came to jail to enquire about my well being. I have committed a crime and may be for that reason they did not come." Thus the appellant admitted the killing of the deceased by dealing axe blow on his neck while deceased was washing his feet near the tube well. The learned trial Court by accepting this admission of the appellant, while recording his statement under Section 313 of Cr. PC coupled with the evidence of PW 1 and CW-1, recorded the conviction against the appellant. 12. Sub-section 4 of Section 313 of Cr. PC reads as under : The answer given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. So this provision has given an opportunity to the Court to act on the answer given by the accused in answer to the question put to him or her with reference to the circumstances appearing against him in the evidence. Though the answer given by the accused cannot be strictly branded as evidence, the same can be taken into consideration against the accused while considering his guilt. This section cast a duty on the Court to place before the accused the facts and circumstances appearing against him in the evidence in order to furnish him an opportunity to explain them and thus help him in showing his innocence. We have already stated herein before that the answers are not evidence and there can be no conviction merely on the accused's statements in absence of any other evidence on the basis the accused can be held to have committed the offence. We have already stated herein before that the answers are not evidence and there can be no conviction merely on the accused's statements in absence of any other evidence on the basis the accused can be held to have committed the offence. Since the evidence of CW-1 and PW 1 proves a case against the appellant under the charge 302, IPC, admission so made by the appellant during recording his statement under Section 313 of the Cr. PC also lends support to the prosecution case. Therefore, we cannot have a hesitation in accepting the facts that it was the appellant who caused the death of the deceased. 13. After a close look and marshaling of the evidence on the Court and the findings arrived at by the trial Court, we do not see any cogent and sufficient reason to interference with the impugned judgment and order of conviction and the same is accordingly affirmed. Appeal from Jail, thus fails. Appeal dismissed.