Gauhati High Court
Jai Kamal Sahu vs State Of Assam on 6 February, 2004
Equivalent citations: (2004)2GLR517
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This is a shocking case of the killing of a teacher, Shri Rabin Nayak, by an outsider, namely, the accused-appellant, Jai Kamal Sahu, while the former was attending to his students inside a class-room of Harmoty Labour L.P. School.
2. This appeal is directed against the judgment and order, dated 17.6.1997, passed by the learned Sessions Judge, North Lakhimpur, in Sessions Case No. 18(NL) of 1994, convicting the accused-appellant under Sections 302 and 448 IPC and sentencing him to suffer, for his conviction under Section 302 IPC, imprisonment for life and undergo, for his conviction under Section 448 IPC, rigorous imprisonment for a period of 2 (two) months, both the sentences having been directed to run concurrently.
3. The case against the accused-appellant, as unfolded at the trial, may, in brief, be stated as follows :-
Deceased Rabin Nayak was a teacher in Harmoty Labour L.P. School and the accused-appellant, Jai Kamal Sahu, was a shop-keeper, the house of the accused-appellant being located near the said school. On 28.9.1992, at about 10.05 am, when Rabin Nayak was holding roll-call sitting on his chair in Class-III of the said School, the accused-appellant came from behind and gave blows with dagger on the face and neck of Rabin Nayak and thrust his head inside the table. Rabin Nayak fell down and the accused-appellant fled away by taking the bicycle, which belonged to Rabin Nayak. Though some persons chased the accused-appellant, the accused-appellant succeeded in reaching Harmoty Police Out post and surrendered there. The information given by the accused as to what he had done was recorded by the police in the form of a GD Entry, the police also seized the bi-cycle by a seizure list (Ext. 5) and, acting upon the information so received from the accused-appellant himself, the police came to the place of occurrence, but in the meanwhile, Rabin Nayak, who on being stabbed by the accused, had come out of the class-room and fallen on the ground, was brought to the garden hospital, where, on examining him, the doctor declared him dead. The police came to the hospital and held inquest over the said dead body. The police also received, at the place of occurrence, written Ejahar (Ext. 1) from Charan Nayak, a, cousin of the deceased, and, treating the same as FIR, registered a case against the accused-appellant under Sections 448 and 302 IPC. On completion of the investigation, the police laid charge-sheet against the accused-appellant accordingly.
4. As the accused pleaded not guilty to the charges framed against him under Sections 448 and 302 IPC, the trial proceeded. In support of their case, the prosecution examined as many as 9 witnesses. The accused-appellant was, then, examined under Section 313 Cr.PC and in his examination aforementioned, he denied that he had committed the offences 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. On conclusion of the trial, the learned trial Court, on finding the accused-appellant guilty of the offences charged with, convicted him accordingly and passed sentences against him as hereinabove mentioned.
5. We have perused the materials on records. We have heard Mr. J.M. Choudhury, learned Senior counsel appearing on behalf of the accused-appellant, and Mr. F. H. Laskar, learned Additional Public Prosecutor, Assam.
6. We may point out, at the very outset, that PW 2 (Rajan Nayak) and PW 3 (Ajit Panika), both of whom were students of Class III of the said School, at the relevant time and both of whom were child witnesses, were examined by the prosecution as eye witnesses to the occurrence of assault on the deceased at the hands of the accused-appellant, PW 5 (Hetaram Nayak) and PW 6 (Arun Rajbhor) are the two residents of the area, where the occurrence took place, and they were examined as the witnesses, who had claimed to have seen the accused-appellant coming on a bi-cycle from the direction of the school, when the hue and cry was heard from the compound of the school. PW 4 (Sarbeswar Hazarika), the owner of a tea stall, which is located near the police Out-Post, is a witness, who claimed to be present at the Out-Post, when the accused-appellant arrived there and surrendered to the police. PW 7 (Dr. Arun Bora) is the doctor of Harmoty garden hospital, who, on examining the injured, had declared him dead. PW 1 (Charan Nayak), a cousin of the deceased, is the one, who has been treated by the prosecution as the informant of this case. PW 8 ASI (Sushil Kumar) is the Investigating Officer of this case and PW 9 (Dr. A. Rahman) is the doctor, who had held post-mortem examination on the dead body of deceased Rabin Nayak.
7. Let us, first, consider the evidence of the two eye witnesses, namely, PW 2 (Rajan Nayak) and PW 3 (Ajit Panika).
8. According to the evidence of PW 2 (Rajan Nayak), his house is near the shop of the accused-appellant and he knows the accused-appellant. As regards the occurrence, PW 2 has deposed that Rabin Nayak was a teacher and on the day of occurrence, when Rabin Nayak was holding roll-call in their class, accused Jai Kamal Sahu had stabbed Rabin Nayak on his neck and face with a dagger, Rabin Nayak fell under a desk and when accused tried to flee away by taking Rabin Nayak's bicycle, he (PW 2) chased the accused, but the accused kicked him (PW 2) and he (PW 2) fell down. It is also in the evidence of PW 2 that Rabin Nayak came out of the class-room and fell down at the school's field and, then, co-villagers such as, Charan Nag, Anil Singh and others came there. It is also in the evidence of PW 2 that at that time, the students of the school were crying, "Accused Jalkamal has killed our sir Rabin Nayak". PW 2 has further deposed that Rabin Nayak was taken to hospital, where he died.
9. In his cross-examination, PW 2 has clarified that he (PW 2) he was in class-Ill at the relevant time and Rabin Nakayak was holding roll call in Class III. PW 2 has also clarified, in his cross-examination, that the teacher used to sit in the middle and on his both sides, the students used to sit and that at the relevant time, Rabin Nayak was sitting at a little distance from him (PW 2) and that they were sitting in front of the door and that he knew accused Jai Kamal from before the occurrence. In his further cross-examination, PW 2 has asserted that he had witnessed the accused stabbing Rabin Nayak on his face and neck.
10. Broadly in tune with the evidence of PW 2, PW 3 (Ajit Panika) has deposed that he knows accused Jai Kamal, who lives in their garden and Rabin Nayak was their teacher.
11. Describing the occurrence, PW 3 has deposed that at the time of occurrence, he was studying in Class III and when Rabin Nayak was holding roll-call in their Class at about 10'O-clock in the morning, accused Jai Kamal thrust a dagger into the neck and the face of Rabin Nayak, all the students cried out and the accused fled away by taking bi-cycle of Rabin Nayak, Rabin Nayak went out of the class-room and fell down near the fence, some people came and took away Rabin Nayak to garden's hospital, where Rabin Nayak died.
12. In his cross-examination, PW 3 has clarified that he did not see the accused entering into the class-room and that at the time of occurrence, they were reading their lessons and it was on witnessing the occurrence that he had raised hallah. It is also in the evidence of PW 3 that the accused pushed the head of Robin Nayak down the table.
13. Both PW 2 and PW 3 were, admittedly, child witnesses. The learned trial Court, therefore, examined them and, upon finding that both of them had attained sufficient maturity to understand the implications of the questions, which were being put to them, the evidence of these two witnesses were recorded. It was neither raised before the learned trial Court nor has it been raised before us, at the time of hearing of this appeal, that these two witnesses were not sufficiently mature to give their evidence. This apart, according to the evidence on record, while PW 2 is a cousin of deceased Rabin Nayak, PW 3 had no such relationship with the said deceased. It is also worth noticing that mere relationship of PW 2 with the deceased can be no reason to discard his evidence. Such relationship makes it necessary for the Court to closely scrutinize the evidence of such a witness, but if, upon such careful scrutiny, his evidence is found to be trustworthy and reliable, there can be no legal impediment or hesitation on the part of the Court to rely upon such evidence.
14. Keeping in view the above aspects of, the case, we have carefully scrutinized the evidence of not only PW 2, but also of PW 3. What we notice is that by cross-examining the two eye-witnesses, nothing could be brought out by the defence to show that what they had deposed was untrue or false. Their presence in the class-room is not disputed nor was it unnatural inasmuch as both of them were students of Class III and were, admittedly, present inside the classroom at the time, when the occurrence took place. This apart, the fact that Rabin Nayak was injured on being given blows with a dagger inside the room of Class III of the said school at the time, when he was holding roll-call inside the classroom is, in fact, not in dispute before us. Even if there were any minor discrepancy in the evidence of these two witnesses, the same, in the absence of any other material discrediting their credibility, could not have been treated to have materially affected the credibility of their evidence inasmuch as the students present inside class-room cannot be said to be prepared for such an occurrence inside their classroom in which their teacher would be stabbed, while holding the roll-call. In such a stage of unpreparedness, some minor variations in the descriptions of the occurrence given by two different witnesses will be quite natural and would, in fact, be hallmark of truth.
15. From a dispassionate and close scrutiny of the evidence of PW 2 and PW 3, we find that their evidence have remained completely unshaken in material particulars inasmuch as their evidence given to the effect that PW2 and PW 3 were present inside the class-room, where the occurrence took place, is not disputed before us. It is also an admitted fact that Rabin Nayak, while holding the roll-call inside the class-room, sustained injuries on his face and neck and, upon sustaining such injuries, he went out of the class-room and fell down on the ground. Though the defence suggested to PW 2 and PW 3 that they had told lies, the suggestions, so offered, remained as mere suggestions inasmuch as nothing could be elicited from their close-examination to show that what they deposed were untrue. Far from this, both these witnesses, in tune with each other, deposed that they had witnessed the accused stabbing, inside their class-room, their teacher, Rabin Nayak, on his face and neck.
16. The evidence of PW 2 and PW-3 describing the occurrence being simply, natural, consistent and coherent inspire great confidence. Learned trial Court has placed reliance on their evidence and we see no reason to take a different view.
17. Close on the heels of the evidence of PW 2 and 3, PW 5 (Heta Ram Nayak) has deposed that the accused is his neighbour, he knows the accused, he also knew deceased Rabin Nayak, a teacher of the school of Harmoti Garden. Coming to the evidence of PW 5, we notice that according to this witness, on the day of occurrence, at about 10 O' clock in the morning, while he was waiting for going to temple by the side of the road at a little distance away from the school, he heard students of the school crying aloud, "morile, morile" ("i.e., dying, dying") and at that very moment, he noticed the accused coming on a bicycle from the direction of the school and when he (PW 5) reached the school, he saw Robin Nayak lying on the fence, his entire body being smeared with blood, and that Robin, who was unable to speak, was, then, taken to the garden hospital, where he died, police came there later on and held inquest over the dead body at the hospital, Ext. 2 being the inquest report.
18. In his cross-examination, PW 5 has clarified that his house is at a distance of one furlong from the school and that he (PW 5 had seen the accused coming on a bi-cycle, when hue and cry was being raised in the school, and that the school is located near the house of the accused and that the school is inside the garden.
19. In his further cross-examination, PW 5 has also clarified that Robin Nayak died, when he was being examined by the doctor and could not be treated. PW 5 has further clarified that since his son had gone to the school, he too, when he had heard the hue and cry from the school, went, out of curiosity, to the school.
20. Closely in tune with the evidence of PW 5, PW 6 (Arun Rajbhor) has deposed that he knows the accused and on the day of the occurrence, at about 10 O'clock in the morning, when he was at house of one Nandaram Baraik, he heard "nullah" raised by the students of the school and, on coming out of the said house, he saw students of the school running away and they told him that their teacher had been killed and at that very moment, he saw the accused getting out of the school taking a bi-cycle from its verandah and when he (PW 6) proceeded further towards the school, he saw the accused kicking a boy. It is in the evidence of PW 6 that the teacher, who stood smeared with blood, fell down on the field with his hands on his head. It is also in the evidence of PW 6 that he (PW 6) too tried to catch hold of the accused, but the accused thundered at him by saying, "dhat" (i.e., keep away) and accordingly, PW 6 withdrew. PW 6 has also deposed that taking a bicycle, the accused went out to the road; their co-villagers came and took the injured to the hospital. In his cross-examination, PW 6 has clarified that he saw 3/4 boys running away, when he was on the road and, then, he went to the school.
21. It is, not doubt, true that PW 5 and PW 6 are both chance witnesses, but the mere fact that they are chance witnesses, their evidence cannot be rejected. When a witness is a chance witness, the Court is required to scrutinize the evidence of such a witness with a lot of care and caution; but if, upon such close scrutiny, the evidence of such a witness is found to be trustworthy and reliable, there is no impediment in placing reliance on the evidence of such a witness. In the absence of anything shown to the contrary, a witness's evidence cannot be rejected merely on the ground that the witness is a chance witness.
22. In the above backdrop, when we closely scrutinize the evidence of PW 5 and PW 6, we find that their presence near the school was somewhat natural inasmuch as PW 5 was waiting by the side of the road to go to the temple and since his house is near the school, it was but natural that he would be so waiting for going to the temple. Moreover, PW 5 went to the school not only because of the fact that he had heard the cries raised at the school, but also on account of the fact that his own son had gone to the school and as a father, this witness's curiosity and concern to find out the reasons for the cries, so raised, was natural and obvious. Thus, it was the curiosity to know as to what had happened at the school and the concern for the welfare of his son that made PW 5 rush to the school.
23. We have put the evidence of PW 5 to close scrutiny, but we find that the defence failed to bring out anything to show that this witness had told lies and/or that he was a tutored witness as had been suggested to him by the defence. Similarly, we have put the evidence of PW 6 too to close scrutiny, but we find that nothing of significance could be elicited by the defence from the cross-examination of this witness and/or from the cross-examination of any other witness to show that this witness's evidence suffers from any infirmity. Far from this, the evidence of PW 6 receives clear support from the evidence of PW 2 inasmuch has PW 6 claims that when, on hearing the hullah, he rushed to the school, he saw the accused leaving the school by taking a bi-cycle from the verandah and he also noticed the accused kicking a boy and the unimpeached evidence of PW 2 is that when the accused was trying to get out of the school by taking Rabin Nayak's bi-cycle, he chased the accused, but the accused kicked him. Having, thus, remained wholly unshaken, the evidence of PW 6 too inspires great confidence,
24. Thus, the unimpeachable and unshaken evidence of PW 5 and PW 6 more than clearly show that when hullah was raised from the school, the accused was seen by them coming from the direction of the school on a bi-cycle. That apart, PW 6 also noticed the accused kicking a boy, while trying to get out of the school and when they (PW 5 and PW 6) reached the school, they found Robin Nayak lying injured, his entire body being smeared with blood.
25. What crystallizes from the above discussion is that when the evidence of PWs 2 and 3, who are the two eye witnesses, is considered, in the light of the evidence of PW 5 and PW 6, it becomes abundantly clear that whereas PW 2 and PW 3 saw the deceased being stabbed by the accused-appellant, and the accused-appellant getting out of the school on Rabin Nayak's bi-cycle and when PW 2 tried to stop the accused from fleeing away, the accused kicked him, PW 5 and PW 6 happened to see the accused fleeing away from the school on the bicycle of Rabin Nayak and when the accused-appellant was attempted to be stopped, the accused-appellant did not stop; rather, he kicked PW 2, threatened the intervener, i.e., PW 6, and fled away. Coupled with these facts, it is also worth bearing in mind that the name of the accused had surfaced as the assailant of the deceased even before the deceased succumbed to his injuries.
26. What, thus, follows from the above discussion of the two eye witnesses, i.e., PWs 2 and 3, coupled with the evidence of the two chance witnesses, namely, PWs 5 and 6 is that the evidence of the two eye witnesses given to the effect that it was the accused, who had injured Rabin Nayak, remained unshaken in their cross-examination and closely lending support to the evidence of PWs 2 and 3, the impeachable evidence of PWs 5 and 6 is that on being attracted by the hue and cry raised from the school, when they proceeded towards the school, they saw the accused-coming on a bi-cycle and PW 6 also noticed one of the students (as spoken to and indicated by PW 2) attempting to stop the accused, but the accused kicked the student and kept rushing out of the school and even when PW 6 attempted to stop the accused, the accused intimidated PW 6 by uttering, 'dhat' (i.e., 'keep away')
27. In the above backdrop, let us, now, consider the evidence of PW 4 (Sarbeswar Hazarika). According to the evidence of this witness, he has a hotel near Harmatty police out post. Regarding the occurrence, PW 4 has deposed that one day, in the year 1992, at about 10.30 AM, he went to the out post to serve a cup of tea to the police officer there and at that time, the accused appeared at the outpost with a bicycle and told that he had cut the garden's school master, police seized the bicycle by the seizure list (Ext.5) and Ext. 5(1) is his (PW 4's) signature. In his cross-examination, PW 4 has clarified that since the day of the occurrence, he has known the accused.
28. Closely lending support to the evidence of, the two eye witnesses, namely, PWs 2 and 3 and the two chance witnesses, namely, PWs 5 and 6, Dr. Arun Bora (PW 7) has deposed that on 18.9.1992, he was Medical Officer at Harmoti garden hospital, he knew late Robin Nayak, who served as a teacher in Harmoti garden school. It is in the evidence of PW 7 that Robin Nayak was brought to garden hospital in injured state in his presence, he examined Robin Nayak, who was smeared with blood, Robin Nayak had no pulse and he (PW 7), thereafter, declared Robin Nayak dead. In his cross-examination, PW 7 has clarified that he had examined the injuries and made entries in hospital register to the effect that the man had died as a result of the injuries sustained by him.
29. Close on the heels of the evidence of PW 4, the evidence of PW 8 (ASI Sushil Kumar Bhuyan), who, eventually, investigated the case, is that on 28.9.1992, PW 8 was attached to Harmoti police outpost as In-charge and on that day, at about 10.05 AM, accused Jal Kamal Sahu came to the outpost and verbally informed PW 8 that he (accused) had stabbed Robin Nayak repeatedly in the neck, who is a teacher of Harmoti T.E.L.P. School, and that he (accused) had come with the latter's bicycle, whereupon PW 8 made an entry in the General Diary of the outpost and went to the place of occurrence, where PW 8 recorded the statements of the witnesses and it was at the place of occurrence that Charan Nayak (PW 1) gave a written Ejahar, which PW 8 sent to Bihpuria police station for registering a case and took the charge of the investigation, Ext. 1 being the said Ejahar. It is also in the evidence of PW 8 that he (PW 8), then, went to the hospital of Harmoti tea estate, held inquest on the dead body of Robin Nayak there and sent the dead body to civil hospital for autopsy. PW 8 has further deposed that he seized the bicycle of the accused, Ext. 5 being the seizure list, he arrested the accused and, on completing the investigation, submitted charge sheet against the accused.
30. Though the evidence given by PWs 4 and 8 to the effect that the accused had admitted before PW 8, who is a Police Officer, that the accused had stabbed Rabin Nayak is a confession made before the Police Officer and is, therefore, not admissible in the evidence, the fact remains that even if this portion of the evidence given by PWs 4 and 8 is kept excluded from the purview of our consideration, as we, indeed, do, what clearly follows, in the light of the unshaken evidence of PWs 2, 3, 5, 6, 4 and 8, is that after injuring Rabin Nayak inside the class-room, as described hereinbefore, the accused rushed out of the school on the bicycle of Rabin Nayak, he came promptly to the Police Out-post and surrendered there, a General Diary Entry, in this regard, was accordingly made by the police, the accused was detained and the said bi-cycle was seized. Though the contents of this GD Entry have been not proved by the prosecution, yet the fact remains that it was on the basis of the information received from the accused himself that PW 8 came to the place of occurrence and received a written Ejahar (Ext. 1) from PW1 (Charan Nayak). Thus, before the Ejahar was so received, the investigation by the police had already made great head-way inasmuch as PW 8 had already reached the place of occurrence in pursuance of the investigation and recorded the statements of the witnesses. The contents of the Ejahar, in question, can, therefore, be treated, at the most, as a statement made, in writing, by PW 1 to PW 8 during the course of the investigation of the case. The contents of Ext. 1 do not form substantive evidence against the accused nor can the contents thereof be used for corroborating the evidence of PW 1. The contents of Ext. 1 can, at best, be used for contradicting the evidence of PW1.
31. With the above limitations in mind regarding the contents of the Ejahar (Ext. 1), when we turn to the evidence of PW 1 (Charan Nayak), we notice that according to this witness, deceased Robin Nayak was his cousin and he knows the accused, who is their co-villager.
32. With regard to the occurrence, PW 1 has deposed that on the day of occurrence, at about 10 AM, on coming to know that accused Jal Kamal Sahu had stabbed Robin Nayak with a dagger, he (PW 1) came to the said school and found Robin Nayak lying injured in a pool of blood in front of the school, he noticed injuries in Robin Nayak's head, forehead and other parts. It is also in the evidence of PW 1 that Ajit, Rajen and other students of the school said that Jal Kamal Sahu had stabbed Robin with a dagger by entering through the back side and, then, fled away and he accordingly lodged an Ejahar with the Harmoti police out post, Ext. 1 being the Ejahar. It is also in the evidence of PW 1 that Robin died immediately after reaching the hospital, police came there, examined the dead body and prepared Ext. 1, which is the inquest report.
33. The material aspects of the evidence of PW 1 have remained unshaken by the defence and this witness's evidence too clearly shows that the name of the accused figured as the assailant of Rabin Nayak immediately following the occurrence and, on receiving the information that the accused had stabbed Rabin Nayak with a dagger, when PW 1 came to the school, he found Rabin Nayak injured as described hereinabove and when the injured was brought to the hospital, the doctor declared him dead. Coupled with this, the evidence of PWs 4 and 8 also show, as already indicated hereinabove, that the bi-cycle, in question, was, indeed, seized from the possession of the accused at the police out-post, when the accused appeared there with the said bi-cycle.
34. Bearing in mind the unshaken oral evidence on record, particularly, the eye witnesses' accounts of the occurrence projecting the accused-appellant as the assailant of Rabin Nayak, when we turn to medical evidence on record, we notice that PW 9 (Dr. A. Rahman) who, on 28.9.1992, performed post mortem examination on the dead body of Robin Nayak, found as follows :
(1) Laceration 2" x 1" x 3" x 2" in the facial region, (2) Lacerated wound in the posterial part (back) of the neck. There was fracture of the 4th and 5th cervical vertebrae and there was laceration on the spinal cord.
It was male body with laceration of the spinal cord and fracture of vertebral bodies, which were ante-mortem in nature.
35. In the opinion of the doctor, (PW 9), the cause of death was shock and haemorrhage as a result of the injuries to the spinal code. PW 9 has further opined that the injuries were sufficient to cause death in the ordinary cause of nature, Ext. 7 being the post mortem report. In his cross-examination, PW 9 has clarified that in this case, the injury to the spinal cord was sufficient to cause death.
36. Let us, now, consider the eye witnesses' version of the occurrence vis-a-vis the findings of PW 9 (Dr. A. Rahman) and his opinion with regard to the cause of death.
37. On a close scrutiny of the evidence of PW 9, we find that according to PW 9, he had found lacerated injuries at the facial region of the deceased and also on the posterior part of his neck with fracture of the 4th and 5th cervical vertebrae. So far as the locations of the injuries found by PW 9 are concerned, the ocular evidence on record completely support the same inasmuch as the unshaken evidence of PW 2, broadly in tune with the evidence of PW 3, is that the accused stabbed the deceased with a dagger on his face and also on his neck. However, since PWs 2 and 3 speak of the injuries having been caused by means of dagger, the injuries found by PW 9 ought to have been, normally, punctured or incised wounds inasmuch as dagger is a pointed weapon with sharp-cutting edge and the dagger ought to have, normally, caused punctured and/or incised wounds. However, as the doctor (PW 9) has found lacerated wounds on the face and neck of the deceased, should this inconsistency be treated good enough to discard the evidence of the eye witnesses ?
38. While considering the above aspect of the matter, we must bear in mind that the medical evidence cannot always be treated as touch-Stone for testing the veracity of the ocular evidence. Hence, if there is a conflict between the eye witnesses' accounts of the occurrence and the medical evidence on record, the Court cannot adopt the easy course of discarding hurriedly the eye witnesses' accounts of the occurrence as unreliable. Far from this, the evidence of the eye witnesses has to be scrutinized carefully and minutely and if, on such examination and scrutiny, the evidence of the eye witnesses remain unshaken and inspire confidence of the Court, there is, notwithstanding the fact that the medical evidence may point to the contrary, no legal impediment on basing the conviction of the accused on such ocular evidence.
39. In State of U.P. v. Krishna Gopal, reported in (1988) 4 SCC 302, the Apex Court has clearly laid down that if the eye witness' account of the occurrence is found by the Court credible and trustworthy, the same can be safely relied upon even if the medical evidence, points to the contrary. This view has been reiterated by the Apex Court in Ramakant Rai v. Madan Rai, reported in AIR 2003 SCW 5633.
40. In Kamaljit Singh v. State of Punjab, reported in (SC) (2003) 12 ILD, the Apex Court has held thus, "It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eye-witnesses, the testimony of eyewitnesses cannot be thrown out (See Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484). The position was illuminatingly and exhaustively reiterated in State of UP v. Krishna Gopal, AIR 1988 SC 2154".
41. Keeping in view the position of law indicated hereinabove, when we revert to the present case, it becomes transparent that in the case at hand, the medical evidence on record does not wholly belie the eye witnesses' accounts of the occurrence inasmuch as the locations of the injuries are as, already mentioned above, not in dispute. At the same time, the evidence given by PW 3 is that apart from giving blows with the dagger on the neck of the deceased, the accused pushed the head of the teacher down the table; hence, the possibility of the fracture having been sustained by the deceased on the 4th and 5th cervical vertebrae, when his head was forcibly pushed down by the accused, as described by PW 3, cannot be totally ruled out. One can also not ignore the fact that according to the undisputed evidence of PW 8 (Investigating Officer) coupled with the evidence of PW1 (Charan Nayak) and PW 5 (Hetaram Nayak), inquest was held on the dead body of the deceased by PW 8 and Ext. 2 is the said inquest report. This inquest report describes thus, "Eyes are half-open. Blood is oozing out from the nostrils. His mouth is open and blood is coming out of the mouth. In the left side of the face, about 1 inch above the jaw there is a cut mark measuring 3/4 inches (long) caused by sharp weapon (Knife). In the middle of the right check and near the ear opening there is cut mark measuring about one inch caused by sharp weapon. In the right side of the nape, near the head, there is a cut mark of about 11/2 inches deep caused by sharp weapon. All injuries are deep in nature and it is assumed that these were caused by sharp pointed weapon.
42. The inquest report, thus, clearly shows that the deceased had sustained cut injuries on his head, right cheek and on the neck. These cut injuries fit into the description of the occurrence given by PWs 2 and 3. We must bear in mind that PWs 2 and 3 were merely students of Class-III, they were boys of tender age, they were sitting, as usual, inside their class-room and their teacher, i.e., the deceased was holding roll-call. In a situation, such as this, these witnesses could not have anticipated the kind of occurrence, which took place inside their classroom. In their unprepared states of mind, if they see a person enter into their class-room and give blows with a dagger on their class teacher, it is natural that they would feel scared, frightened and horrified; hence, in such tension-ridden moments, they may not be able to graphically remember the exact number of blows given by the accused, the precise locations of the blows dealt with and/or the force with which the injuries were caused. If one places himself in the position of the two child witnesses, namely, PWs 2 and 3, and in this perspective, when their description of the occurrence is considered, their evidence clearly emerge, to be, as already mentioned hereinabove, simple, natural, consistent and coherent and, hence, their evidence cannot be discarded in the face of some inconsistency with the medical evidence on record, particularly, when the contents of the unchallenged inquest report lends substantial support to the evidence of these two eye witnesses. Notwithstanding, therefore, the fact that neither the prosecution nor the learned trial Judge elicited from the doctor if blows given by a dagger could have caused the kind of injuries, which had been found, by PW 9, the fact remains that the ocular and oral evidence on record coupled with what is seen in the inquest report and also the broad support, which the eye witnesses' account of the occurrence receives from the medical and other evidence on record, leave really no room for doubt that it was the accused, who had caused injuries on Rabin Nayak leading, eventually, to his death.
43. Moreover, all the witnesses have deposed, in one voice, that the whole body of the deceased Rabin Nayak stood smeared with blood. From the kind of lacerated injuries, which PW 9 has described, such profused bleeding would not have been possible. This is, a serious infirmity in the medical evidence on record and such a weak nature of medical evidence cannot be taken to have belied and/or shaken the consistent, coherent and natural descriptions of the occurrence given by the witnesses, whose presence at the place of occurrence were not in dispute at all. It needs to be borne in mind, if we may reiterate, that the fact that Rabin Nayak sustained injuries inside the class-room, when he was holding roll-call there and/or that PW 2 and PW 3 were present in their classroom at the time, when the occurrence took place are not disputed at all. In other words, presence of the two eye witnesses, namely, PW 2 and PW 3 is natural and undisputed.
44. What follows from the above discussion is that the evidence on record clearly prove that it was the accused-appellant, who had given blows with a dagger on Robin Nayak causing injuries on his person, which, eventually, led to his death.
45. In the face of the above proven facts and conclusions, which we have reached, we, now, turn to the question if the accused-appellant can be said to have committed the offences punishable under Sections 448 and 302 of the Indian Penal Code ?
46. While considering the above aspect of the matter, it is important to bear in mind that Section 448 of the Indian Penal Code punishes house trespass. What is 'house trespass' is defined in Section 442, which lays down as follows :
"442. House trespass. - Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as place for worship, or as a place for the custody of property is said to commit "house trespass"."
47. A bare reading of Section 442 clearly shows that for an offence to be house trespass, there must be criminal trespass. Criminal trespass is defined in Section 441, which reads thus :
"441. Criminal trespass. - Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an, offence, is said to commit "criminal trespass"."
48. A combined reading of Sections 441 and 442 clearly shows that whoever enters into or remains in any building, used for human dwelling or for custody of property or as a place of worship with intent to commit an offence, commits the offence of house trespass. The building, in question, has to be, ordinarily, in use for human dwelling or for custody of property or as a place of worship. If a building is not used for human dwelling nor is it used as a place for custody of property and/or place of worship, no offence of house trespass can be said to have been committed by a person, who enters into or remains in such a building with intent to commit an offence. In a situation, such as this, the offence of unauthorized or unlawful entry, if any, would amount to criminal trespass. When a person enters into or upon the property in the possession of another person unauthorisedly or unlawfully or having lawfully entered, unlawfully remains there with intent to commit an offence, he can be held to be guilty of an offence of criminal trespass.
49. In the present case, the building, in question, is a school building. A school is neither a building, which is, ordinarily, in use as human dwelling or as a place for custody of property or as a place of worship. Hence, merely because the furniture or fixture may be lying inside such a building, an unlawful or unauthorized entry into such a building with intent to commit an offence cannot amount to commission of the offence of house trespass, though it may amount to criminal trespass.
50. In the case at hand, as the evidence on record reveals the entrance of the accused, even if initially lawful, became unlawful, when he remained there with intent to commit an offence. Viewed from this angle, the accused-appellant can be safely held to have committed the offence punishable under Section 447 IPC. For the purpose of entering into the school or into the class-room, the accused is not shown to have obtained any permission. Normally, for entering into a classroom, permission from the head of the school and/or from the teacher, who is present in the class-room, is essential. No such permission, obviously, was obtained by the accused. Far from this, the evidence of PW 2 shows that the accused stealthily entered into the class-room, which eloquently speaks of his unlawful entry into the class-room with intent to commit offence of, at least, hurt to Rabin Nayak. Thus, the accused-appellant can be safely held to have committed the offence of criminal trespass punishable under Section 447 IPC and he could not have been held guilty of an offence punishable under Section 448 IPC.
51. Coming to the conviction of the accused-appellant for the offence of murder, it may be noted that it has been submitted by Mr. Choudhury that the accused-appellant ought not to have been held guilty of the offence of murder inasmuch as the accused gave only two blows, oh the deceased and none of the two blows in the face of the medical evidence on record, can be said to be fatal and, hence, the possibility that Rabin Nayak died accidentally, when he was allegedly pushed down the table causing thereby fracture of his 4th and 5th cervical vertebrae cannot be safely ruled out. While considering this aspect of the matter, it needs to be noted that there is no law that a single blow, in the facts and circumstances of a given case, cannot amount to the offence of murder. In fact, on the basis of even a single blow, it may be, in a given set of facts and circumstances, sufficient to hold that the assailant committed the offence of murder if the intent to cause death is proved. Number of blows cannot always be a criterion for determining the intent of the assailant. If the circumstances indicate that the intent of the accused was to cause death and he was prevented by intervening factors from giving further blows on the person, whom the assailant assaults, it would not mean that the accused did not intend causing death of his victim. The present one is somewhat a similar case.
52. In the case at hand, the accused-appellant entered into the classroom, gave blows with dagger on Rabin Nayak, Rabin Nayak fell down and the accused made good his escape, for, by that time, the students of the school had raised hue and cry and the school was agog with the cries that their teacher had been killed or was being killed. In a situation, such as this, the accused fled away from the scene of occurrence, came to the police outpost and surrendered there. This does not mean that the accused wilfully did not give blows on the deceased as many times as he would have given, had he intended to kill.
53. In the present case, the weapon used by the accused was, undoubtedly, a deadly weapon like dagger and the inference should be that the accused wanted to cause such injuries as the weapon was capable of causing. The part of the body, which the accused selected to give blows, included a delicate and vital organ like neck. When a person uses a deadly weapon like dagger and wants to cause injury on the neck with such a deadly weapon, the selection of weapon and the selection of organ of the human body speak loud and clear that the assailant intends to cause death of his victim. Coupled with these facts, the force with which the accused dealt blows was so severe that it caused fracture of the 4th and 5th cervical vertebrae of the deceased. The fracture sustained by the said deceased is an index of the force with which the accused had dealt the blows. When all these facts are considered together, it becomes more than amply clear and leave no room for hesitation in reaching the conclusion that the accused-appellant intended to cause nothing but death of the deceased and that the accused-appellant did, indeed, succeeded in attaining what he intended.
54. Situated thus, we have no hesitation in holding that the accused did commit offence of murder, which is punishable under Section 302 IPC.
55. For what have been discussed above, and the conclusion that we have reached, this appeal partly succeeds. While conviction and sentence passed against the accused-appellant under Section 448 IPC stand set aside, he (accused-appellant) shall stand convicted for offence punishable under Section 447 IPC and he is accordingly sentenced to undergo simple imprisonment for a period of 1 (one) month. So far as the conviction and sentence passed against the accused-appellant under Section 302 IPC is concerned, the same are maintained.
56. With the above observations and modifications in the conviction and sentence passed against the accused-appellant, this appeal shall stand disposed of.
57. Send back the LCR.