Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 344 (GAU)

Siraj Hazarika v. State of Assam

2009-05-21

I.A.ANSARI, J.CHELAMESWAR

body2009
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 20.10.2002, passed, in Sessions Case No. 125(S)/2001, by the learned Additional Sessions judge (FTC), Sonitpur, the accused-appellant, Siraj Hazarika, stands convicted under Section 302, IPC and sentenced to suffer imprisonment for life and pay a fine of Rs. 1,000/-. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as follows: (i) On 14.2.2001, at about 8.30 p.m., Hem Chandra Das (since deceased) returned home from market and, asking his wife (PW-1) to make food ready, he went out to the backside of his house to answer nature's call. Shortly thereafter, Hem Chandra Das was heard by his wife (PW-1) and by his mother (PW-6) screaming that Siraj Hazarika had hacked him. Hem Chandra Das, then, came running inside his house with injuries on his neck and back with profused bleeding and fell down on the ground inside his house. Having seen her husband in injured condition, his wife (PW-1) started screaming. Even PW-6 (mother of the injured) also started screaming for held. To both of them, the injured told that Siraj Hazarika had hacked him. Many of the neighbours of the injured came to the house of the injured and were told by the injured that it was Siraj Hazarika, who had caused cut injuries on him. The injured was taken to Behali Police Station, which is at a distance of about one mile from the house of the injured. At the Police Station, PW-6, orally, informed the police that their co-villager, Siraj Hazarika, had injured her son by hacking him. Based on this oral information, GD Entry No. 262 dated 14.2.2001, at 9.45 a.m., was made at Behali Police Station. While, at the police station, statement of injured Hem Chandra Das was recorded by the Officer-in-Charge of the said Police Station (PW-13). The injured was, then, sent to Behali PHC with a request made by the police for his examination and treatment. Seeing the serious nature of the injuries, Behali PHC referred the injured to Borgang Catholic Hospital. From Borgang Catholic Hospital, the injured was, again, referred to Tezpur Civil Hospital. On the following day, that is, on 15.2.2001, a written information (Ejahar) was lodged by PW-1 (wife of the injured). Seeing the serious nature of the injuries, Behali PHC referred the injured to Borgang Catholic Hospital. From Borgang Catholic Hospital, the injured was, again, referred to Tezpur Civil Hospital. On the following day, that is, on 15.2.2001, a written information (Ejahar) was lodged by PW-1 (wife of the injured). Based on this Ejahar and treating the same as the First Information Report, a case was registered, at the said police station, against the accused, under Sections 442, 326, 307, IPC. As the injured succumbed to his injuries on 15.2.2001, inquest was held on his dead body and autopsy was performed. During investigation, police seized a khukri on being produced by accused Siraj Hazarika and, on completion of investigation, police submitted charge-sheet against the accused under Sections 447 and 302, IPC. (ii) At the trail, the accused pleaded not guilty to the charge framed against him under Section 302, IPC. In support of their case, prosecution examined altogether 14 witnesses. The accused- appellant was, then, examined under Section 313, Cr PC and, in his examination aforementioned, he denied to have committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. Having found the accused guilty of the charge framed against him, the learned trial Court convicted the accused accordingly and passed sentence against him as mentioned above. Hence the present appeal. 3. We have heard Mr. A. Ojah, learned amicus curiae, and Mr. K. Munir, learned Additional Public Prosecutor. 4. While considering the present appeal, what needs to be pointed out is that the prosecution case is, broadly speaking, based on the oral dying declaration, which is said to have been made by the injured, naming the accused-appellant as his assailant. This apart, the statement of the injured was, according to the prosecution, recorded by the Investigating Officer (PW-13) at the police station, wherein also the injured had named the present appellant as his assailant. This apart, the statement of the injured was, according to the prosecution, recorded by the Investigating Officer (PW-13) at the police station, wherein also the injured had named the present appellant as his assailant. Besides these two incriminating pieces of evidence, there is also evidence of the Investigating Officer (PW-13) that during investigation, when he interrogated the accused, the accused told him that he would show him the Khukri used in the murder and accordingly, he (PW-13), accompanied by the accused, went to the house of the accused and, on being shown by the accused, he seized, in the presence of witnesses, the Khukri, the Khukri having been found concealed in the middle of thatches of the roof of the kitchen of the accused-appellant. 5. We may, at once, point out that none of the witnesses of the alleged seizure has been examined by the prosecution. Moreover, the statement of the accused, relied upon by the prosecution, is to the effect that he would show the khukri, which he had used in the murder. The later part of the statement, namely, "...which he used in the murder", related to the past use of the khukri. The statement of the accused that he had used the khukri in the murder could not have, therefore, been made admissible in evidence under Section 27 of the Evidence Act, particularly, when the later part of the statement, namely, "...he had used the khukri in the murder", had not led the police to the alleged recovery of the said khukri. The only evidence, thus, admissible, against the accused, was that the accused had told the Investigating Officer that he would show the khukri and, following the statement, so made, the accused had led the Investigating Officer (PW-13) to his house and a khukri, concealed in the midst of thatches, in the roof, was recovered and the Investigating Officer seized the khukri, in question, as the weapon of offence. Apart from the fact that the witnesses to the alleged seizure were not produced or examined during the trial, even the Khukri, which is claimed to have been seized, was not produced and/or proved during the trial. We, therefore, fail to attribute any importance to this piece of evidence or to hold that the accused-appellant had led PW-13 to the recovery of a Khukri. 6. We, therefore, fail to attribute any importance to this piece of evidence or to hold that the accused-appellant had led PW-13 to the recovery of a Khukri. 6. Regarding the oral dying declaration, what needs to be pointed out is that according to the evidence of PW-1, wife of the deceased, her husband, after having asked her to prepare food, went to the backside of the house to answer to nature's call and, after sometime, she heard her husband screaming that Siraj Hazarika had hacked him and, then, her husband came running inside the house with profused bleeding and fell down inside the house. In tune with the evidence so given by PW-1, the evidence of PW-6 (mother of the deceased) is that on returning from market with vegetables, her said son had asked his wife (PW-1) to prepare meal and went to the backside of the house to answer nature's call and, after a few minutes, her son came back holding his neck with both his hands crying that Siraj has caused cut injuries on him and, thereafter, the injured fell down inside the house. PW-6 has also deposed that she saw cut injuries on her son, which extended from the cheek to back side of the neck and another injury covered the entire backside below the arms. It is in the evidence of PW-6 that on seeing her son's condition, when she started screaming, her neighbours came, the injured was taken to Behali Police Station and, then, to Behali PHC, but having seen his serious condition, the doctor referred the injured to Ketela Mission Hospital, but the said hospital too refused to treat her son and her injured son was, thereafter, taken to Civil Hospital, Tezpur. 7. We have minutely scanned the cross-examination of these two witnesses (i.e., PW-1 and PW-6) by the defence and we find that nothing could be elicited by the defence, from the cross-examination of these two witnesses, to show that what they had deposed was untrue. We may also point out that it is in the evidence of PW-1 that having seen her husband profusely bleeding, she fell down. We may also point out that it is in the evidence of PW-1 that having seen her husband profusely bleeding, she fell down. In her cross-examination, while asserting that her husband told her that Siraj Hazarika had cut him and, then, he fell down and became senseless, she also stated that, thereafter, she too became senseless and she did not know as to when her husband was taken to Behali PHC. Though PW-1 deposed, in her evidence, that her husband had become senseless, the evidence of PW-6 (mother of the deceased) is that the injured did not lose his senses and was repeatedly stating that Siraj had caused the injuries on him. Though there is apparent contradiction between the said two versions, the fact remains that since PW-1, as per her own evidence, became senseless and remained unaware of how and when her husband had been shifted to police station. In such a situation, the evidence of PW-6 (mother of the deceased) that the deceased had been, repeatedly, stating that Siraj had caused cut injuries on him cannot be completely brushed aside. This apart, the evidence given by PW-1 and PW-6 that the said deceased had gone to the backyard of his house to answer nature's call, he was heard screaming that Siraj Hazarika had hacked him and, then, the deceased came inside his house with injuries on his person and was screaming that he had been injured by Siraj Hazarika has remained wholly unshaken and we see no reason to disbelieve this part of the evidence of PW-1 and PW-6; more so, when we find that a number of neighbours of the said deceased, namely, PW-3, PW-5, PW-7, PW-8, FVV-9, PW-10 and PW-11, have deposed that hearing hue and cry raised from the house of the said deceased, they all came to the house of the deceased, they found the deceased in injured condition and that he (i.e., the deceased) reported to them that Siraj Hazarika had hacked him. 8. In the backdrop of evidence discussed above, we proceed to consider the evidence of the doctor (PW-2), who conducted the post mortem examination on the dead body of the said deceased. 8. In the backdrop of evidence discussed above, we proceed to consider the evidence of the doctor (PW-2), who conducted the post mortem examination on the dead body of the said deceased. The findings of the doctor are as follows: (i) An incised wound is present in the right side of the face, starting from the right cheek, below the right ear, up to the neck severing the neck of the mandible right up to the upper cervical vertebrae of the neck 8" in length. (ii) A deep incised wound 12" in length from one scapula to the other (on the backside) severing the upper thoracic vertebrae and part of spinal cord. 9. It is in the evidence of PW-2 (Doctor) that the injuries were ante mortem in nature, the injured died due to shock and haemorrhage as a result of the injuries sustained by him and that the injuries were sufficient to cause death. 10. From the evidence of the doctor, the deceased clearly transpires to have sustained an incised wound on the right side of the face starting 'from the right cheek below the right ear up to the neck severing the neck at the mandible right up to the upper cervical vertebrae of the neck and coupled with this injury, there is yet another incised wound extending from one scapula to the other severing the upper thoracic vertebrae and part of spinal cord. We also do not entertain any doubt that the shock and haemorrhage, resulting from the said injuries, caused the death of the said deceased. 11. In view of the fact that the injuries aforementioned caused the death of the said deceased and the said deceased had told PW- 1 and PW-6 that the said injuries had been caused by Siraj Hazarika, it becomes transparent that the evidence, given by PW-1 and PW-6, that the said deceased had told them that Siraj Hazarika had hacked the said deceased, is oral dying declaration. We see no reason not to believe the evidence so given by PW-1 and 6 and their evidence is sufficient to base the conviction of the accused for having caused the death of the said deceased. 12. We see no reason not to believe the evidence so given by PW-1 and 6 and their evidence is sufficient to base the conviction of the accused for having caused the death of the said deceased. 12. Though the witnesses of the neighbourhood were cross-examined by the defence, nothing, in particular, transpires to have been elicited from their cross-examination by the defence to show that the evidence of these neighbouring witnesses that Siraj Hazarika had caused cut injuries on his person cannot, or should not, be believed. 13. It has been contended by the learned amicus curiae that PW-1 and PW-6, being widow and mother, respectively, of the said deceased ought not to have been relied upon by the learned trial Court inasmuch as they are interested-witnesses. It needs to be pointed out, in this regard, that a close relative of an injured or a deceased is neither incompetent nor inherently interested or partisan witness. In fact, the relatives of an injured or deceased, particularly, relatives, such as, mother, father, widow and/or children of an injured or deceased would be, in the absence of anything showing to the contrary, the last persons to screen the real offender and falsely implicate an innocent. We may make it clear that in a given set of facts and circumstance, a relative may, in fact, be most natural witness. The present one is one of such cases, because it was natural for PW-1 and PW-6 to be present at home and it was also natural for the said deceased to tell them, in injured condition, as to who had caused injuries on his person. Viewed from this angle, it becomes clear that the evidence of PW-1 and PW-6 cannot be discarded merely because of the fact that they are relatives of the said deceased. In Dalbir Kaur v. State of Punjab AIR 1997 SC 472, the Apex Court has, while dealing with similar controversy, observed thus, "Moreover, a close relative, who is a very natural witness, cannot be regarded as an interested witness. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is, somehow or the other, convicted either because he had some animus with the accused or for some other reason." 14. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person is, somehow or the other, convicted either because he had some animus with the accused or for some other reason." 14. Dealing with the question as to whether a member of the family of an injured or deceased, particularly, if such a member is a female person can or cannot be relied upon, the Apex Court, in Dilip Singh and Ors. v. The State of Punjab reported in AIR (1953) SC 364, observed and held as under: 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate or seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one, which another Bench of this Court endeavoured to dispel in the case of Rameshwar v. State of Rajsthan AIR 1952 SC 54 at pl 59(A) : 1952 Cri LJ 547. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel. 26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts. 15. From the observations, made in Dilip Singh, (supra), it becomes clear that in the factual setting of the present case, PW-1 and PW-6 are most natural witnesses and, for the reasons, which we have discussed above, we see no reason to disbelieve their testimony. 16. It has been pointed out, on behalf of the appellant, that the evidence of PW-4 is that having heard hue and cry raised from the house of the deceased, when she came out of her house, she carried, in her hand, an earthen lamp. This shows, according to the learned amicus curiae, that the night was dark and in such circumstances, it would not have been possible for the deceased to have seen his assailant. While considering this aspect of the case, it needs to be pointed out that nothing has been brought out on record by the defence to show that the backyard of the house of the deceased did not have light nor is there any evidence to show that the night was so dark that even two persons, who were known to each other, could not have recognised each other. In such circumstances, we do not see any reason to hold that the deceased might have committed an error in recognizing his assailant. Had it been the case of the defence that the deceased could not have recognised the assailant, due to darkness, they ought to have elicited or produced some materials, on record, in this regard. Basing merely on the evidence given by PW-4 that she came out of her house with an earthen lamp in her hand, one cannot reject the evidence given by PW-1 and 6 nor can we hold that the possibility of error having crept in, while naming the accused by the deceased, cannot be ruled out. 17. We have also found that the prosecution relies on the statement of the injured, when he had been brought to the police station on the very night of the occurrence, that is, on 14.1.2001. 17. We have also found that the prosecution relies on the statement of the injured, when he had been brought to the police station on the very night of the occurrence, that is, on 14.1.2001. We find from the cross-examination of the Investigating Officer that the injured remained at the police station, for about ten minutes and it was from there that the injured was sent to Behali PHC. It is the evidence of PW-7 that the police had recorded the dying declaration of the deceased Hem Chandra Das, Ext-3 is the said declaration and Ext-3(1) is his signature. Except offering some suggestions to this witness to the effect that he had not gone to the police station and he had not heard the injured stating before the police that the accused had cut him, nothing has been elicited, from the cross- examination of this witness by the defence, to show that Ext. 3 not a statement made by the said deceased. We may also point out that though this witness (PW-7) deposed that the police had not read out to him the contents of Ext-3, the fact remains that the Investigating Officer's evidence is that Ext-3 is the statement of the said injured and Ext-3(2) is his signature and a perusal of Ext- 3, we note, shows an endorsement by PW-13 that he had recorded the said statement. This apart, we notice that in the cross-examination, the Investigating Officer has deposed that while he was taking the statement of Hem Chandra (injured), blood was oozing out from his neck as well as from his back. It was also in the evidence of PW-13 that the witnesses were present, while he was taking down the statement of the injured. On minute scrutiny of the cross-examination of the PW-13, we do not find that the defence has been able to prove that the Ext-3 is not the statement of the injured and/or that it had not been recorded, at the time and in the manner as has been deposed to by the PW-13. Merely because of the fact that PW-13 is a police officer, his evidence, in the absence of any other reason, cannot be discarded or rejected as untrue or unsafe to rely upon. Merely because of the fact that PW-13 is a police officer, his evidence, in the absence of any other reason, cannot be discarded or rejected as untrue or unsafe to rely upon. We have, therefore, no reason to hold that Ext-3 is not the statement made by the said injured and, ' in the circumstances of the present case, ought not to have been treated, by the learned trial Court, as dying declaration of the said deceased. 18. It has also been contended by the learned amicus curiae that, in the present case, the dying declaration was not recorded by a Magistrate or Doctor and, hence, the dying declaration (Ext- 3), which is claimed to have been recorded by the Investigating Officer (PW-13) ought not to the been relied upon. In Kulwant Singh v. State of Punjab reported in 2004 9 SCC 257 , the Apex Court has held that it is not essential that a dying declaration should be made only before a Magistrate inasmuch as Section 32 of the Evidence Act, nowhere, states that the dying declaration must be recorded by a Magistrate. There is no inherent bar in a policeman recording a dying declaration. In the facts of a given case, even a dying declaration, recorded by a police officer may be relied upon by the Court, if such a dying declaration inspires confidence. We may also point out that there is no legal bar in basing a convocation on a dying declaration if the Court believes that the dying declaration is true and safe to rely upon. In . the present case, apart from the evidence of dying declaration, the earliest information given to the police, when the injured was carried to the police station, shows that the injured had mentioned the name of the present appellant as the assailant. Thus, the dying declaration, said to have been made by the injured, stands corroborated by other material pieces of evidence. This apart, we see no reason to discard the evidence of the neighbours of the said deceased inasmuch as it has not been the case of the defence that the neighbours were, otherwise also, hostile to the accused. In fact, the neighbours of the said deceased had no reason to falsely implicate the accused-appellant. 19. This apart, we see no reason to discard the evidence of the neighbours of the said deceased inasmuch as it has not been the case of the defence that the neighbours were, otherwise also, hostile to the accused. In fact, the neighbours of the said deceased had no reason to falsely implicate the accused-appellant. 19. At time of hearing of this appeal, it has been pointed out, on behalf of the appellant, that according to the dying declaration, the assailant had used a weapon, which is known as 'unit dao', but the investigating officer (PW-13) claims to have seized a Khukri, which is not the same as mit dao. In view of the fact that we have already held that the evidence given by the Investigating Officer that a khukri was seized, on being led by the accused, cannot be safely believed, particularly, when none of the seizure witnesses was examined to prove the seizure nor was the khukri produced during trial, we see no reason to discard Ext-3. 20. What emerges from the above discussion is that the said deceased lost his life as a result of the injured sustained by him. It is also clearly proved that it was the accused-appellant, who had caused the said injuries, which resulted into the death of the said deceased. The fact that an injury was caused on a vital part of the body, such as neck, the force with which the injuries had been caused, and the nature of weapon, which could have caused such incise wounds, are all indicative of the fact, and lead one to only one conclusion, and the conclusion is, that the accused-appellant intended to cause death of the said deceased and by causing the injuries aforementioned, the accused-appellant did intentionally cause the death of the said deceased. 21. For the conclusions, which we have thus reached, we have no hesitation in holding and affirming the finding of the learned trial Court that the accused had committed the offence of murder punishable under Section 302, IPC. We, therefore, uphold the conviction of the accused-appellant under Section 302, IPC. 22. We have also considered the sentence passed against the accused. We do not find that the sentence passed against him is harsh and/or unreasonable. We, therefore, see no reason to interfere with the sentence passed against the accused. 23. We, therefore, uphold the conviction of the accused-appellant under Section 302, IPC. 22. We have also considered the sentence passed against the accused. We do not find that the sentence passed against him is harsh and/or unreasonable. We, therefore, see no reason to interfere with the sentence passed against the accused. 23. For the reasons discussed above, this appeal fails and shall accordingly stand dismissed. 24. Sent down the LCRs. Appeal dismissed