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2015 DIGILAW 537 (GAU)

Awnghlau v. State of Mizoram

2015-05-07

A.K.GOSWAMI, M.R.PATHAK

body2015
JUDGMENT : Arup Kumar Goswami, J. 1. Heard Mr. Lalfakawma, learned Amicus Curiae. Also heard Mr. A.K. Rokhum, learned Public Prosecutor, Mizoram. This appeal is from jail and is directed against the judgment and order dated 13.12.2011 passed by the learned Sessions Judge, Lunglei, in Crl. T.R. No. 8/2011 convicting the accused/appellant under Section 302 IPC and sentencing him to suffer rigorous imprisonment for life. 2. P.W. 1 had lodged the Ejahar at about 7-45 P.M., on 12.09.2008, before the Vasei Police Station whereupon Vasei Police Station Case No. 6/2008 was registered. In the Ejahar, Ext. P-1, it was stated that at about 4-00 A.M., his Sequent guest, Baichiau, who was from Myanmar and a timber trader by profession, was stabbed to death by the accused/appellant, who is his fellowman, and that the accused fled away from the scene. P.W. 2 had started investigation and, at around 11-30 A.M., the accused had appeared in the police station and stated that he had stabbed the deceased. The knife (Material Ext.-1) was recovered at the instance of the accused and as the earlier Investigating Officer was transferred, on conclusion of investigation, P.W. 4 submitted the charge-sheet vide Ext.-5. 3. Charge was framed under Section 302 IPC to which the accused pleaded not guilty and claimed to be tried. During trial, the prosecution examined 4 witnesses and the defence examined no witness. Statement under Section 313 Cr.P.C. was recorded and the learned trial Court, as noted earlier, convicted the accused/appellant vide the judgment under appeal. 4. Mr. Lalfakawma, learned Amicus Curiae has submitted that the evidence of P.W. 1 is wholly not reliable. The evidence of the two Investigating Officers, P.W. 4 and P.W. 2, are also contradictory in material aspect of the case relating to seizure of the knife alleged to have been used by the accused. No seizure witnesses have been examined and, apart from P.W. 1, even though the materials on record disclose that statements of many other witnesses were recorded, but the same were withheld by the prosecution. Though in his Section 313 Cr.P.C. statement the accused/appellant had stated that he had stabbed the deceased, such statement cannot form the basis of conviction in absence of any credible evidence led by the prosecution. Though in his Section 313 Cr.P.C. statement the accused/appellant had stated that he had stabbed the deceased, such statement cannot form the basis of conviction in absence of any credible evidence led by the prosecution. With regard to his contention that the evidence of P.W. 1, being the sole witness apart from official witnesses, has to be considered with great care and caution, the learned counsel has relied upon a judgment of the Apex Court in the case of Govindaraju @ Govinda Vs. State of Karnataka & Anr., reported in (2012) 4 SCC 722 . 5. Mr. Rokhum, learned Public Prosecutor has supported the impugned judgment. It is submitted by him that minor contradictions should not sway the Court to hold that the prosecution had not been able to establish the guilt of the accused beyond reasonable doubt. He has contended that the evidence of P.W. 1 is clinching and, therefore, reliance on the statement made by the accused under Section 313 Cr.P.C. can be taken into consideration for the purpose of lending credence to the prosecution case and, in that view of the matter, the learned trial Court committed no illegality in convicting and sentencing the accused/appellant. In the aforesaid background of the evidence, when the accused had owned up the commission of the crime, no interference is called for with regard to the conviction and sentence imposed upon the accused/appellant, he submits. 6. We have considered the submissions of the learned counsel for the parties and have also perused the materials on record. 7. P.W. 3, the doctor conducting postmortem examination, on the basis of the postmortem report exhibited as Ext.-P3, had opined that death was due to damage of lung and bleeding at right chest following sharp, pointed and penetrating wound at right chest There was no other external injury. 8. There is an agreement between the learned counsel for the parties that the word "fellowman", appearing in the translated version of the Ejahar in the paper book, could be more aptly described as "colleague". This will signify that both the accused and the deceased were traders in timbers. The Ejahar discloses that the deceased was a frequent guest of P.W. 1. This will signify that both the accused and the deceased were traders in timbers. The Ejahar discloses that the deceased was a frequent guest of P.W. 1. The distance between the police station and the place of occurrence appears to be about 1/2 kilometer and the Ejahar came to be lodged after about 3 hours 45 minutes from the time mentioned in the Ejahar. 9. In his evidence, P.W. 1 had stated that the accused/appellant was residing at Vasei for about a year and he had called the accused to treat his daughter as the accused was practicing Ayush medicine. His further evidence is to the effect that his vocation is sawing timber and that he has five children. It is also stated that on the night of 11.09.2008, he slept inside the room and the accused and the deceased slept in the verandah of his house and that, at around 3-00 A.M. in the morning, he heard screams and as he went out, he saw that the accused had run away from the spot. He noticed stab injuries on the person of the deceased and the deceased was covered with blood. 10. From his evidence, it does not appear that the deceased and the accused were known to each other from before, though in the Ejahar it was indicated that the deceased had been killed by his fellow tradesman, signifying that they had known each other. 11. The evidence of P.W. 2 discloses that he found the dead body inside the residence of P.W. 1. Thus, the dead body was not found in the verandah, but inside the house, indicating that there was shift in the place of occurrence. As P.W. 1 had indicated that the deceased was covered with blood, there must have been profuse bleeding, but, for inexplicable reasons, the Investigating Officers did not state whether they had noticed any pool of blood and, if they did, where. This assumes significance in view of the fact that except P.W. 1 there is no other witness other than the official witnesses. P.W. 2's further evidence is that a knife was recovered by him at the instance of the accused "below his residence". This assumes significance in view of the fact that except P.W. 1 there is no other witness other than the official witnesses. P.W. 2's further evidence is that a knife was recovered by him at the instance of the accused "below his residence". P.W. 4, on the other hand, gave a diametrically opposite statement when he stated that the knife had been recovered from near the residence of P.W. 1 as the accused had thrown away the knife after stabbing the victim. P.W. 4 was the witness who had seized the knife. Significantly, no seizure witness had been examined though there are two witnesses to the seizure list. Most surprisingly, in his cross-examination, P.W. 4 stated that he was not present at the time of recovery of the knife. It is also not on record that the knife seized on the very day of the occurrence bore any stain of blood. It is well known that a knife is a very common object which is of daily use. In view of the above discussion, we are of the opinion that recovery of the knife as the weapon of offence is not established by the prosecution. 12. In Govindaraju (supra), the Apex Court stated as follows: "24. It is settled proposition of law of evidence that is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if the prosecution can bring home the guilt of the accused even with a limited number of witnesses. In Lallu Manjhi Vs. State of Jharkhand (SCC p. 405, para 10), this Court had classified the oral testimony of the witnesses into three categories: (a) wholly reliable; (b) wholly unreliable; and (c) neither wholly reliable nor wholly unreliable. In the third categories of witnesses, the court has to be cautious and see if the statement of such witness is corroborated, either by the other witnesses or by other documentary or expert evidence. 25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. 25. Equally well settled is the proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of a sole witness should be cogent, reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of a sole eyewitness, then such evidence has to be wholly reliable and trustworthy. Presence of such witness at the occurrence should not be doubtful. If the evidence of the sole witness is in conflict with the other witnesses, it may not be safe to make such a statement as a foundation of the conviction of the accused. These are the few principles which the Court has stated consistently and with certainty." 13. The accused had stated in his Section 313 Cr.P.C. statement that the public had apprehended him and had produced him before the police. He had also denied the presence of the deceased in the residence of P.W. 1. He had further stated that he slept alone on that night and two persons had come and forcibly taken away his money. One person, who snatched the money, disappeared and he made request to the other person to return the money and, on his refusal to return the same, he had stabbed him. 14. Suggestions were given to P.W. 2 that the accused had not appeared in the police station on his free will. It appears from the evidence of P.W. 2 that during the course of investigation a number of witnesses were examined, but the prosecution did not examine the aforesaid witnesses and they were also not listed as witnesses in the charge-sheet. P.W. 1 had also stated that he heard from "public" that the deceased had consumed liquor. 15. P.W. 1 was not an eye-witness to the occurrence. In any view of the matter, the evidence of P.W. 1 has to be accepted with caution and after testing it on the touchstone of the standard of evidence adduced by other witnesses or the evidence otherwise recorded. 15. P.W. 1 was not an eye-witness to the occurrence. In any view of the matter, the evidence of P.W. 1 has to be accepted with caution and after testing it on the touchstone of the standard of evidence adduced by other witnesses or the evidence otherwise recorded. In order to hold the accused guilty solely on the basis of the statement of P.W. 1, his evidence has to be wholly reliable and trustworthy and must essentially fit into the chain of events that have been stated by the prosecution. 16. In view of the inherent contradictions, we are not satisfied that the evidence of P.W. 1 is wholly reliable and that the conviction can be sustained on the basis of his sole testimony. The Ejahar came to be lodged after about 4 hours 45 minutes from the time mentioned in the evidence of P.W. 1, which is 3-00 A.M. There is no explanation why it took such a long time to inform the police when the police station was just about 1/2 a kilometer away. It is also to be remembered that according to P.W. 2, the dead body was found inside the residence of P.W. 1 and not on the verandah. 17. On an overall consideration of the evidence on record, we are of the opinion that based on the evidence of the witnesses examined by the prosecution, it cannot be said that the prosecution has proved the case beyond reasonable doubt against the accused/appellant. It is a well settled principle in law that even if there is element of suspicion, however grave, the same cannot take the place of proof. 18. In a criminal trial, the purpose of examining the accused under Section 313 Cr.P.C. is to enable the accused personally to explain any circumstances appearing in the evidence against him. It is also to be borne in mind that the statement of the accused under Section 313 Cr.P.C. is not taken on oath and the same is not a substantive piece of evidence. 19. It is equally well settled that the statement made under Section 313 Cr.P.C. cannot be made the basis for conviction. In Rajkumar Singh Vs. It is also to be borne in mind that the statement of the accused under Section 313 Cr.P.C. is not taken on oath and the same is not a substantive piece of evidence. 19. It is equally well settled that the statement made under Section 313 Cr.P.C. cannot be made the basis for conviction. In Rajkumar Singh Vs. State of Rajasthan, reported in (2013) 5 SCC 722 , the Apex Court had laid down that the statement of the accused under Section 313 Cr.P.C., though cannot be made a basis for his conviction, the same can, however, be used for appreciating the evidence led by the prosecution, but it cannot be a substitute for the evidence of the prosecution. It is further held that in case the prosecution evidence is not found sufficient to sustain the conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. 20. In view of the above discussion, we are inclined to allow the appeal and, accordingly, this appeal is allowed. The impugned judgment passed by the learned trial Court is set aside and quashed. The accused/appellant is acquitted of the charges. 21. Before parting with the records, we record our appreciation for the assistance rendered by Mr. Lalfakawma, learned Amicus Curiae. He will be entitled to a sum of Rs. 7,000/- towards fee to be paid by the Mizoram State Legal Services Authority. Registry will send back the LCR.