Gauhati High Court
Crl.A./407/2017 on 23 December, 2022
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/28
GAHC010049002017
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Appeal No. 407/2017
Sri Phulsai Garh,
Son of Late Ramcharan Garh,
A resident of Diju Tea Estate,
P.O.: Diju, P.S.: North Lakhimpur,
District: Lakhimpur, Assam, PIN-787001.
......Appellant.
-Versus-
1. The State of Assam.
2. Smt. Sugi Garh,
Wife of Lt. Fulsai Garh,
A resident of Diju Tea Estate, Line No.3,
P.O.: Diju, P.S.: North Lakhimpur,
District: Lakhimpur, Assam, PIN-787001.
......Respondents.
BEFORE HON"BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI For the Appellant: Mr. A. Tewari, Amicus Curiae, ......Advocate.
Page No.# 2/28
For the Respondent No. 1 : Ms. B. Bhuyan,
Sr. Advocate &, Addl. PP, Assam.
Mr. J. Das, Adv.
......Advocates.
Date of Hearing : 13.09.2022 and 14.09.2022.
Date of Judgment : 23.12.2022
JUDGMENT AND ORDER
[Malasri Nandi, J.]
Heard Mr. A. Tewari, learned Amicus Curiae. Also heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam assisted by Mr. J. Das, learned counsel appearing for the State/respondent No.1.
2. The present appeal has been preferred against the judgment dated 18.10.2016 passed by the learned Additional Sessions Judge, (F.T.C.), Lakhimpur, North Lakhimpur in Sessions Case No.63(NL)2015 by which the present appellant, Sri Phulsai Garh was convicted under Sections 341/326 as well as Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs.10,000/- (Rupees ten thousand) only, and in default of payment of fine to undergo further rigorous imprisonment for 6(six) months for the offence punishable under Section 302 of IPC. The learned Trial Court held that offences under Sections 341/326 IPC were found to be established against the appellant beyond reasonable doubt but no separate sentence was imposed as the accused was convicted and sentenced under Section 302 IPC.
Page No.# 3/28
3. Before we appreciate the contentions raised by the learned Amicus Curiae that it cannot be said that the prosecution has been able to prove the charges against the appellant beyond reasonable doubt, it may be necessary to refer briefly the background facts of the case.
4. The criminal proceeding against the appellant was set into motion after an FIR was lodged on 08.10.2008 by one Smt. Sugi Garh, wife of the deceased Phulsai Garh of Dizu Tea Estate, Line No.3 to the effect that at around 7 P.M. of 07.10.2008 while her husband Phulsai Garh accompanied by his elder sister Manmotia Garh and younger brother Mangalsai Garh were going to Manmatai's House from Dizu Tea Garden, the 4 (four) accused, namely, Sri Badal Garh, Sri Gakul Malpaharia , Sri Phulsai Garh (Petu) and Sri Ramjesh Garh intercepted them and because of an old grudge injured them with sharp weapon, as a result of which her husband died on the spot and other two persons sustained grievous injuries and the injured persons had been undergoing treatment at North Lakhimpur Hospital.
5. Based on the aforesaid complaint lodged, one F.I.R. case being North Lakhimpur P.S. Case No.615/2008 under Sections 341/326/302/307/34 IPC was registered against the aforesaid four accused persons.
6. Accordingly, necessary investigation was launched and on completion of the investigation, charge-sheet was filed against the aforesaid four accused persons and the case was committed for trial. The Court of learned Additional Sessions Judge (FTC), Lakhimpur, has framed the following charges against the four accused persons, which reads as follows:-
Firstly, that the accused persons on the night of 07.10.2008 at about 7 P.M. at Diju Bagan, Line No.2, under North Lakhimpur Police Station, in furtherance of their common intention, wrongfully restrained- Phulsai Garh, the husband of the informant, Smt. Sugi Garh, her sister- in-law Smt. Manmotia Garh and her brother-in-law Sri Mangalsai Garh on their way to the Page No.# 4/28 house of Sri Manmotia Garh from the Diju Bagan and thereby they committed an offence punishable under Sections 341/34 of IPC.
Secondly, that the accused persons on the same date, time and place, in furtherance of their common intention, voluntarily caused hurt to Sri Mangalsai Garh, by means of sharp weapon and thereby they committed an offence punishable under Sections 324/34 of IPC. Thirdly, that they on the same date, time and place, in furtherance of their common intention, voluntarily caused grievous hurt to Smt. Manmotia Garh by means of sharp weapon and thereby they committed an offence punishable under Sections 326/34 of IPC. Fourthly, that they on the same date, time and place, in furtherance of their common intention, committed murder by causing the death of the deceased Phulsai Garh, the husband of the informant Smt. Sugi Garh and thereby they committed an offence punishable under Sections 302/34 of IPC.
7. In support of the aforesaid charges, the prosecution examined as many as 10(ten) witnesses and exhibited the relevant documents and material evidences before the Trial Court.
8. The learned Additional Sessions Judge, F.T.C., Lakhimpur, on appreciation of the evidences on record, convicted the appellant, Phulsai Garh under Sections 341/326/302 IPC as mentioned above but the other three accused persons, namely, Ramjesh Garh, Badal Garh and Gakul Malpaharia were acquitted as the Trial Court did not find any material evidences against them.
9. Smt. G. Manmotia Garh, sister of the deceased who was allegedly accompanying the deceased at the time of occurrence was examined as PW1.
She stated before the Court that the deceased Phusai Garh was her brother and the informant, Chugi Garh was her sister-in-law. She stated that on the day of the incident at around 6 P.M. while she along with the deceased were going to Dizu Tea Estate to take part in the Durga Puja celebrations, the accused persons inflicted cuts on them with dao, axe etc. inside the Line. She stated that accused Gakul and Phulsai Garh hacked her with a pruning knife, as a result of which, she sustained cut injury in her hands, face and ears. She also stated that the said two accused persons also inflicted cuts on her brother Phulsai Garh with Page No.# 5/28 the pruning knife and they hacked her brother on his neck. She stated that other two accused were with them and thereafter, she was taken to the hospital where she was treated but her brother succumbed to his injury.
PW1 was duly cross-examined by the defence and denied that the incident did not take place at around 7 P.M. and that it took place at 3 P.M. She also stated that the accused Phulsai Garh is her nephew and the incident took place on the road and the house of the accused were situated at some distance from the place of occurrence.
The Trial Court made the observation that since the witness (PW1) had sustained injuries in her face in the incident of this case, she was finding it difficult to give her statement. PW1 denied that she did not see as to who had inflicted the cuts on her. The accused- appellant Phulsai Garh declined to cross-examine the witnesses.
10. The next witness examined was Smt. Sugi Garh, PW2 who is the wife of the deceased Phulsai Garh. She deposed before the Court in the same line as mentioned in the F.I.R.
PW2, in her deposition narrated the incident and about the assault of the deceased and her sister-in-law. She stated that the incident took place at around 6 P.M. on the day of occurrence during the Durga Puja festival. She stated that she along with her husband Phulsai Garh and sister Manmotia had gone to Diju Tea Estate to take part in the Durga Puja festival whereupon the accused persons intercepted them and hacked them with pruning knife. She stated that they hacked her husband's neck and face and inflicted cut wounds to her sister Manmotia's neck and face. At that time, her brother-in-law, i.e. the younger brother of her husband (Mangal) came there and enquired as to who had inflicted the cuts on them, the accused also assaulted him on his head and neck. PW2 stated that Phulsai Garh and Gakul had hacked her husband and also Manmotia. She also stated that other two accused were also present along with these two accused persons. PW2 stated that seeing the occurrence she ran away from there so that they could not inflict any injury to her. She stated Page No.# 6/28 that her husband died on the spot later on. Thereafter, she lodged the ejahar.
During the cross-examination on behalf of the accused Ramjesh, Badal and Gakul, she denied that at the time of the incident, she was at home. She also stated that her husband had undergone imprisonment in connection with another case and returned home on bail. She denied the suggestion of the defence that she did not state what she had stated in the evidence-in-chief.
She was also cross-examined on behalf of the accused Phulsai Garh. She denied the suggestion that she did not witness the occurrence. She also admitted that prior to the occurrence of the incident, they had land disputes with the accused persons in connection with which her husband was put behind the bars. She also denied the suggestion that she had lodged a false case against them earlier.
11. The next witness examined was Sri Mangla Garh, PW3, who apparently was along with the deceased at the time of the incident.
PW3 stated that he along with his elder brother Phulsai Garh (the deceased), his sister-in-law, Sugi and elder sister Manmotia Garh had gone to take part in the Durga Puja festival being celebrated nearby. He stated that the accused Phulsai Garh called the other accused persons and intercepted them on the road at Line in the tea garden. Thereafter, the accused Gakul inflicted cut injury on him with the pruning knife. The said Gakul along with Phulsai also inflicted cut injuries on his elder sister Manmotia with the same knife. He also stated that the accused persons together had cut the deceased Phulsai and he died on the spot.
PW3 was duly cross-examined on behalf of the accused Ramjesh, Badal and Gakul and denied the suggestion that he has stated before the police that he had gone to enjoy the Durga Puja festivities along with his elder sister and elder brother only. He also denied the suggestion made by the accused that he did not make the statement as referred above before the police. He also denied the suggestion made by the accused Phulsai Garh that after consuming liquor, he went along with his elder sister, elder brother and sister-in-law to enjoy the Durga Puja festivities. He sustained the injuries after they fell down.
Page No.# 7/28
12. The next witness examined was Sri Samir Garh, the son of the deceased who also narrated about the incident as mentioned above. However, he (PW4) stated that he was already at the Puja Mandap and as such, did not witness the incident. He came to the place of occurrence after hearing about it and he saw that at the place of occurrence his father, uncle Mangal and aunt Manmotia lying injured there and thereafter, he went to Silonibari Out Post and informed about the incident and the police came to the place of occurrence with him in their vehicle and took the injured persons, Manmotia and Mangal to Lakhimpur Civil Hospital and took his father's dead body to the Silonibari Out Post.
13. The next witness examined was Shri Rubul Dutta, PW5, who was a witness to the seizure of a dao in the police station. However, he stated that he did not know from where and in what context, the said dao was seized.
14. The next witness examined was Sri Lalsai Garh, PW6, who was the younger brother of the deceased. He stated that he was at home at the time of occurrence and as such, he did not know who had killed his brother though later on he came to know that somebody had killed his elder brother and later on also he did not hear anything else about the said case.
15. The next witness examined was Lakhi Charan Garh, PW7. Though he was the nephew of the said deceased Phulsai Garh, he was in his house to attend the Durga Puja celebrations and did not know anything about the incident.
16. The next witness examined was Md. Bodirul Hoque, PW8, who was the in-charge of Silonibari Police Out post, stated that upon receipt of ejahar from the complainant Smt. Sugi Garh, he made the GD Entry and forwarded the ejahar to Officer-in-charge of North Lakhimpur Police Station for registering a case. He visited the place of occurrence, did the Page No.# 8/28 needful by preparing the sketch map and also conducting the enquiries and preparing the inquest report and sent the dead body for post-mortem report. He also stated that he seized a pruning knife from the place of occurrence which was exhibited as Ext.1. He conducted the investigation and on completion of investigation, charge-sheet was submitted by one Girish Ch. Nath, S.I. During the cross-examination on behalf of accused Gakul, Badal and Ramjesh Garh, PW8 stated that PW1 Manmotia Garh did not state before him that accused Gakul had cut her. Similarly, he also stated that PW2 Sugi Garh did not state before him that at the time of occurrence she went to attend the Durga Puja celebration with her husband and Manmotia Similarly, PW8 stated that PW3, Mangalsai Garh did not state him that during the investigation that he went to enjoy the puja festivities with his brother and sister and that the accused Phulsai called the other accused persons and inflicted cut injuries on them. He also stated that since darkness had descended at the time, things were not clearly visible.
17. The next witness who was examined was Dr. Mahendra Saikia, PW9, who had examined the two injured persons namely, Shri Manmotia Garh and Sri Mangal Garh stated that he found the following injuries.
"1. Sharp cut injury on the scalp and face of injured Smt. Manmotia Garh (Size-3" x 2") with laceration of soft tissue within the area of face. The injuries were grievous in nature caused by sharp object and the injuries were fresh.
2. Sharp cut injury on scalp and face of the injured Sri Mangal Sai Garh. The injuries were simple caused by sharp object and the injuries were fresh."
PW-9 was not cross-examined by the defence.
18. Dr. Diganta Dutta was examined as PW10, who had performed the post-mortem examination over the dead body of the deceased Phulsai Garh and found the following injuries-
Page No.# 9/28 " Multiple cuts -(1) over right fronto parietal region of 14 cm x 1 cm x 1 cm (2) Right check up to back of right ear of 16 cm x 3 cm x 1 cm, (3) just below No.1 12 cm x 2 cm x 1 cm, (4) back of neck from right to left cutting p to cervical cord at the level of C3/4 vertebrae of 12 cm x 4 cm x 1 cm, (5) behind angle to jaw on right upto midlines of 6 cm x 2 cm x 1 cm, (6) below No.4 back of neck of 5 cm x 2 cm x 1 cm."
The doctor, opined that the deceased died due to cut injury over the back of his neck. He proved the post-mortem report prepared by him.
The defence did not cross-examine the witness, PW10.
19. After recording the evidences of the witnesses, the Trial Court confronted the appellant with the incriminating evidence which was brought on record. However, to the aforesaid questions put by the Court to the appellant citing incriminating materials, he stated that these are all false evidences and he did not know. He also declined to say anything before the Court and also declined to lead any evidence. Thus, the stand of other accused were the same, i.e. total denial and alleged that the evidences are all false.
The Trial Court after considering the evidences on record including the statement of the accused under Section 313 Cr.P.C., convicted the appellant under Section 326/341/302 IPC and acquitted the other remaining persons.
The Trial Court after appreciating the evidence on record held that it appears that at the alleged time of occurrence Smt. Manmotia Garh (PW1), Sri Mangala Garh (PW2) and the deceased Phulsai Garh had gone to take part in the Durga Puja celebration in their Bagan line, the accused whose name is also Phulsai Garh inflicted dao blow over the neck of the deceased. The accused also caused dao blow injury to Manmotia Garh (PW1) on her face, hand and ear which was corroborated with the evidence of PW1.
The Trial Court noted that PW3 stated that the deceased died on the spot. The Trial Court also noted that the Investigating Officer, Rubul Dutta (PW5) had seized the dao.
The Trial Court also noted that the FIR was lodged without making delay on the next day of occurrence and the Investigating Officer visited the place of occurrence and recovered the said dao.
The Trial Court also referring to the evidence of the doctor, PW9 that shows that on Page No.# 10/28 examination of Smt. Manmotia Garh (PW1), he found sharp cut injuries on her scalp and face bearing size 3" x 2" with laceration of soft tissue within the area of her face and as per the opinion of the said Doctor, the injuries were grievous in nature, caused by sharp object and the injuries were fresh.
The Trial Court also referred to the findings by the doctor, PW10, who performed the post-mortem examination, about the various nature of injuries received by the deceased and also gave his opinion that the deceased had died because of the cut injury over the back of his neck.
The Trial Court noted that the nature of the injuries sustained would clearly indicate the intention of the appellant to cause the death of the deceased.
The Trial Court relied on the decision of the Hon'ble Supreme Court in Shery Vs. State of UP; 1991 Supp (2) SCC 437; wherein it was held that it was safe to convict only those accused persons whose presence was not only consistently mentioned but also to whom some overt acts have been attributed and accordingly, the Trial Court proceeded to convict the present appellant but acquitted the remaining accused persons.
20. Mr. A. Tewari, learned Amicus Curiae submits that the prosecution's case is full of contradictions, inconsistencies, various lapses and short-comings which would render the prosecution case untenable and it cannot be said that the prosecution has been able to prove the case beyond reasonable doubt.
21. Mr. Tewari, learned Amicus Curiae submits that, first of all, the intention or motive for committing a crime is a very important factor to be considered by the Court and absence of which would lead to the doubtfulness of the prosecution case. He submits that in the present case, it cannot be said at all that the prosecution has been able to prove the intention for commission of such a crime though it was mentioned by PW2, Sugi Garh that there was a motive or previous enmity. Mr. Tewari submits that In fact, if that is so, that would be a good ground for falsely implicating the appellant.
Page No.# 11/28
22. Mr. Tewari, learned Amicus Curiae submits that in fact, there is a possibility of appellant being falsely accused because of the prior enmity.
23. In this regard, learned Amicus Curiae has drawn attention to the evidence of PW2, Smt. Sugi Garh, the wife of the deceased (the informant), who in categorical terms had stated during the cross-examination that her husband had undergone imprisonment in connection with another case and returned home on bail. In the cross-examination by the appellant, PW2 also stated that prior to the occurrence, they had land disputes with the accused persons and in connection with the said case her husband was put behind the bars. Learned Amicus Curiae submits it can therefore, be stated that because of the previous enmity, the appellant has been falsely implicated.
24. Apart from the aforesaid lack of clarity as to the real intention for committing the offence which could not be brought out clearly by the prosecution, the prosecution witnesses have not consistent, in fact, have been contradictory in vital areas.
25. It has been submitted that while the deceased and his sister, said witnesses PW1 and PW3 were going to Diju Tea Estate to take part in the Durga Puja celebrations, the accused persons have inflicted cuts on them with dao and axe etc. inside the line. Thus, by the said evidence only three persons who were allegedly assaulted, however, the number of people assaulted was increased to four on so called eye witness count is to be considered i.e. Mangala Garh or Mangalsai Garh who stated in his deposition that his elder brother Phulsai Garh, sister-in-law Sugi Garh and his sister Manmotia and the said Mangalsai were going to enjoy the Durga Puja celebration when the incident occurred.
26. As far as PW2 is concerned, though she claimed to be also present at the time of Page No.# 12/28 occurrence, her evidence could not be relied upon inasmuch as she did not mention her presence in the FIR lodged. If she was herself present in the incident and the FIR was lodged on the next day soon after the incident, there is no reason why there is no mention of her presence in the FIR.
27. Mr. Tewari, learned Amicus Curiae, accordingly, submits that it is a case of improvement in the version of the prosecution.
Mr. Tewari further submits that from the reading of evidence of PW1, PW2 and PW3, it would be evident that the name of other accused who have been acquitted, namely, Gakul appears very prominently as one who along with other accused had assaulted the said three persons but at the same time, said Gakul has been acquitted by the Trial Court and by drawing parity, Mr. Tewari submits that if the persons whose name has been consistently appeared as assailant has been acquitted, the appellant should have been given the same benefit.
28. Mr. Tewari submits that the inconsistency in the evidence of PW3 render his evidence not reliable. While he had stated that the accused Gakul inflicted cut on him with the pruning knife because of which he sustained injuries on his head and was provided treatment in the Civil Hospital, subsequently, the I.O. of the case did not mention about the PW3 being treated. In fact, the I.O. in his statement however mentioned only of Manmotia Garh, PW1 of being sent to North Lakhimpur Civil Hospital for treatment. If PW3 had indeed received injury and got treatment from the Civil Hospital, there is no reason why he would not have been mentioned of being sent to the Hospital for being treatment.
In the cross-examination of the IO, he also stated that PW3, Manglasai Garh did not state before him that he had gone to enjoy the puja festivities with his brother and sister, and the accused Phulsai Garh called the other accused persons and inflicted cuts on them and that accused Gakul had inflicted cuts on him. He also stated that since darkness had Page No.# 13/28 descended, the things were not very visible clearly.
29. Learned Amicus Curiae submits that the aforesaid statement of I.O. would clearly indicate that whatever PW1, Manmotia Garh stated in the Court was never stated during the investigation before the IO and it can be easily inferred that whatever PW3 stated before the I.O was merely to falsely implicate the appellant.
30. Coming to the other discrepancies, Mr. Tewari further submits that perusal of the FIR would show that first of all it does not mention of presence of the informant herself and as per the testimony of PW1, she did not mention about the assault of PW3.
However, the evidence of Dr. Mahendra Saikia, PW9 shows that the injured were examined by the said PW9 on being brought before him by the police as mentioned in his evidence. On the other hand, the IO, PW8, stated that the GD Entry was made on 08.10.2008 and the FIR was also lodged on 08.10.2008. It has been further submitted that whether the FIR correctly portrayed the incident is also doubtful inasmuch as the complainant was apparently an illiterate who put her right thumb impression on the copy of the FIR. It does not mention that it was the contents and the same was read over which was thereafter admitted to be correct by the informant.
31. Coming to the evidence of PW1, Manmotia Garh, while she was very specific as to the role of Gakul and Phulsai Garh having injured her with the pruning knife and also her brother Phulsai Garh.
32. While coming to the assault of Phulsai Garh, PW1 said it was Gakul and Phulsai Garh who hacked Phulsai Garh on the neck.
33. As submitted earlier, learned Amicus Curiae submits that if the said accused Gakul who had allegedly hacked the deceased along with the present appellant and Gakul has been acquitted on the same set of evidences, the appellant also deserves to be acquitted.
Page No.# 14/28
34. Coming to the evidence of PW2, Sugi Garh, it has been submitted that even though she claims to have been at the place of occurrence as mentioned above, since she did not mention the same in the FIR lodged by her, her presence is doubtful.
35. Coming to the evidence of PW3, Mangala Garh, it has been submitted that PW3 also introduced the presence of PW2, Sugi Garh in his evidence while he alleged that Gakul inflicted cut on him with a pruning knife as a result of which he sustained injuries on his head. It has been shown by the evidence of PW9 that such an injury was a minor injury and not a grievous injury. Further, while the assault of the deceased Phulsai, the said witness Mangal Garh did not specifically mention of any specific act done by the appellant but makes a general allegation against all the accused without specifying as to the exact role played by the appellant. Unless an exact role of the appellant has been clarified, the appellant only could not be convicted while acquitting other accused, which according to the witnesses three persons were present with him.
36. As regards the testimony of PW4, Sri Samir Garh is concerned, he was not an eye witness. He came to know of the incident only later on and therefore, the evidence of PW 4 cannot be used at all for conviction of the appellant.
37. As regards the evidence of PW5, Sri Rubul Dutta, it has been submitted that though he was cited as a seizure witness, he had himself in categorical terms stated that he did not know from whom the said dao was seized and in what context it was seized and as such, the seizure of the dao cannot be said to be proved at all.
38. As regards the evidence of PW6, Sri Lalsai Garh who is brother of the deceased, it has been submitted by Mr. Tewari, learned Amicus Curiae that even if he (PW6) was not an eye Page No.# 15/28 witness, being the brother he would have learnt later on as to who would be the assailant. But in his deposition PW6 merely stated that later on he learnt that somebody had killed his elder brother, Phulsai but he did not know who had killed his elder brother. He stated that later on also he did not hear anything else in that regard.
According to Mr. Tewari, PW6 appears to be a genuine witness who did not know anything about the identity of the assailants of the deceased which would clearly show that the testimony of PW1, PW2 and PW3 were concocted to falsely implicate the appellant because of old enmity as admitted by PW2 herself.
39. Mr. Tewari, learned Amicus Curiae submits that the evidence of PW7, Sri Lakhi Charan Garh is also of same nature inasmuch as he is a nephew of the deceased. Thus, related to the deceased.
PW7 stated that he was busy in the Durga Puja festival celebrations and he did not know anything about the occurrence and also did not hear as to who had killed the deceased.
40. It has been submitted by learned Amicus Curiae that it is very unnatural that the close relatives of the deceased did not know as to who was the assailant even later. Their ignorance of the actual identity of the appellant indicates that the testimonies of the PW1, PW2 and PW3 are false.
41. Mr. Tewari submits that the evidence of PW1, PW2 and PW3 were false and is reinforced by the evidence of the IO who during the cross-examination had categorically stated that PW1, Manmotia Garh did not state before him that accused Gakul had cut her; PW2, Smt. Sugi Garh also did not state before him that at the time of occurrence she went to enjoy the puja festivities with her husband and Manmotia which would indicate that PW2 was not in the place of occurrence. Otherwise, she would have mention about the presence to the I.O. Similarly, PW3 also did not state before him that he had gone to enjoy puja festivities Page No.# 16/28 with his brother and sister and the appellant called other accused persons and inflicted cuts on them and the accused Gakul had inflicted cuts on him.
42. Coming to the evidence of PW10, Dr. Diganta Dutta, i.e. the doctor who performed the post-mortem examination, it has been submitted that he has given an information that the deceased died due to injury caused on the back of neck from right to left cutting up to cervical cord at the level of C3/4 vertebrae of 12 cm x 4 cm x 1 cm.
43. It has been submitted that thus, the fatal injuries could have been caused to a person only when a person is struck from behind, not from the front. There is no evidence from the prosecution witness that the deceased was struck from behind by the appellant or by the other persons who have been accused of committing the said crime. Thus, there is a doubt as to who had actually caused the said fatal injury to the deceased.
44. Though Mr. Tewari, learned Amicus Curiae had tried to show other contradictions or inconsistencies of these three witnesses by referring to the statement recorded under Section 161 Cr.P.C. especially that of PW3 Mangalsai Garh who had stated in his statement recorded under Section 161 Cr.P.C. that he ran away from the place of occurrence after the incident occurred and thereafter, he remained unconscious and he found himself in the hospital.
45. We are of the view that since these aspects were not brought on record during the examination of the witness (PW3), it may not be appropriate for this Court to go into that aspect inasmuch as the evidence recorded under Section 161 Cr.P.C. cannot be used for any purpose except for as to how contradiction is made as provided under Section 154 of Indian Evidence Act, 1872 and it has been also mentioned that such portion has to be specifically brought to the notice of the witness before any such contradiction is specifically brought to Page No.# 17/28 the notice of PW3.
46. Learned Amicus Curiae also has submitted at length as regards the dao which was allegedly seized. He submits that while the witnesses PW1, PW2 and PW3 mentioned specifically of pruning knife, they did not mention the use of dao by any of the persons except for making a general statement that the said accused-appellant inflicted cuts on them with dao axe etc. However, PW1 had specifically stated that the two accused persons, namely, Gakul and the present appellant had inflicted cuts on his brother Phulsai Garh with pruning knife. PW1 did not mention use of dao by the accused-appellant and Gokul. Similarly, PW2 also speaks of accused person hacking them with pruning knife used for cutting leaves in the tea garden. She also did not mention the use of dao by any of the accused.
PW3 also cited as an injured witness mentioned of the appellant and the accused Gakul inflicting cut injury on Manmotia, PW1 with pruning knife. Though PW3 states that the accused persons together cut the deceased but by which of the implement or weapon the deceased has been cut has not also been mentioned.
47. Learned Amicus Curiae submits that therefore, taking into consideration the evidence of PW5, the seizure witness, it is highly doubtful as to whether the said dao which was allegedly seized was the weapon used for committing the crime.
48. In response, Ms. B. Bhuyan, learned Senior counsel as well as learned Additional Public Prosecutor, Assam submits that even if the presence of the informant (PW2) at the place of occurrence is discounted, the evidences of PW1 and PW3 are consistent and they have specifically mentioned the presence of the appellant and the others. They have categorically stated that it was the appellant and others who had hacked the deceased and as such, there is no reason, why the consistent statement ought not to be relied upon by the Court. Ms. Page No.# 18/28 Bhuyan submits that merely because there have been some enmity or inconsistencies in the evidences, such evidences of the injured witness could not have been ignored. There may be some differences in the evidences here and there and or even little bit of exaggeration but, if taken, as a whole, the evidence of PW1 and PW3 are consistent, without any major contradictions or inconsistencies and are sufficient to sustain the conviction.
49. In this regard, Ms. Bhuyan has relied on the decision of the Hon'ble Supreme Court in State of UP Vs. Naresh and Ors., (2011) 4 SCC 324.
The relevant paragraphs of the aforesaid decision in Naresh (supra) are reproduced hereinbelow:
"26. The High Court has disbelieved Balak Ram (PW.5), who had suffered the gun shot injuries. His evidence could not have been brushed aside by the High Court without assigning cogent reasons. Mere contradictions on trivial matters could not render his deposition untrustworthy.
The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide:
Jarnail Singh v. State of Punjab, (2009) 9 scc 719; Balraje @ Trimbak v. State of Maharashtra (2010) 6 scc 673; and Abdul Sayed v. State of Madhya Pradesh (2010) 10 scc 259).
27. The High Court disbelieved both the witnesses Subedar (PW.1) and Balak Ram (PW.5) as being closely related to the deceased and for not examining any independent witnesses. In a case like this, it may be difficult for the prosecution to procure an independent witness, wherein the accused had killed one person at the spot and seriously injured the other. The independent witness may not muster the courage to come forward and depose against such accused. A mere relationship cannot be a factor to affect credibility of a witness. Evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false Page No.# 19/28 implication is made and the Court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh (supra), Vishnu and Ors. v. State of Rajasthan (2009) 10 scc 477; and Balraje @ Trimbak (supra))."
50. Further, it has been submitted that mere presence of enmity of the accused with the deceased cannot be also a ground to disbelieve the prosecution case unless there are material contradictions or reasons to disbelieve the evidence of the witnesses.
51. In this connection Ms. Bhuyan has relied on the decision of the Hon'ble Supreme Court in State of Maharashtra Vs. Tulsiram Bhanudas Kamble, 2007 14 SCC 627 in para 32 and 33.
"32. In Baitullah and another vs. State of U.P.,3 [1998) 1 SCC 509], this Court noticed Arjun vs. State of Rajasthan,4 [(1994) Supp. (3) SCC 189], wherein it was observed :
"9. Learned counsel for the appellants first contended that there was long-standing enmity between the complainant and some of the witnesses on one hand and the appellants on the other and some criminal proceedings between them were going on when the alleged incident took place and hence it was due to this enmity that the appellants were falsely implicated. It was also submitted that Bahori, PW1 and Sat Pal Singh, PW7 are also relatives of the deceased and other prosecution witnesses are also close associates and, therefore, there is possibility of false implication of the appellants in the crime in question. It is an admitted fact that the complainant and the appellants were on inimical terms and some criminal proceedings were ending between them even at the time when the occurrence took place. It is equally true that Bahori, PW1 is the brother of the deceased and informant Sat Pal Singh, PW7 is the son of the deceased. But we are not convinced by the aforesaid arguments that either on account of animosity or on account of relationship they did not divulge the truth but fabricated a false case against the appellants. It is needless to emphasize that enmity is a double-edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or are on inimical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the witnesses with the Page No.# 20/28 deceased. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinize the evidence with more than ordinary care which precaution has already been taken by the two courts below while analyzing and accepting the evidence."
33. As regards enmity, it is well known that enmity is a double edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication."
52. Ms. Bhuyan accordingly submits that since eye witness accounts is available before the Court and they have remained consistent in their evidence, more so, when their evidence has not been questioned by the defence, there is no reason why the evidence should not be relied upon.
53. As regards the evidence of PW1, Ms. Bhuyan submits that the defence on behalf of the appellant had declined to cross-examine the witness thereby the evidence of PW1 had remained unchallenged. If that is so, there is no reason why the evidence of PW1 could not be relied upon.
54. Similarly, in respect of PW3, who is also an injured eye witness, though he was subjected to cross-examination by the defence, as far as the present appellant is concerned, the said witness was not subjected to cross-examination on behalf of the appellant except for making a suggestion that after consuming liquor when be along with the victim, his elder sister and sister-in-law were going to enjoy puja festivities they fell down and sustained injuries.
Thus, the presence of the appellant at the place of occurrence was never questioned by the defence which had been clearly asserted by the prosecution witnesses as mentioned above.
55. Ms. Bhuyan submits that it cannot be said that in spite of certain discrepancies or differences or contradictions which may appear to have come on record, these are not fatal Page No.# 21/28 and not amount to substantial in nature and minor in nature and as such, can be ignored in the teeth of specific eye witness accounts of PW1 and PW3. It has been accordingly submitted that the impugned judgment does not warrant any interference from this Court.
56. We have heard the rival submissions made by the parties. We have also gone through the record of Sessions Case No. 63 (NL)/2015 as well as the evidence of the witnesses recorded before the trial Court and also the Judgment passed by the learned trial Court.
57. We shall now examine whether the approach made by the trial Court in judging the guilt of the appellant on the premise that the acquitted person also participated in the offence has introduced any error. The powers of the appellate Court in dealing with an appeal against an order of conviction are defined under Section 386(1) (b) of CrPC, 1973, corresponding to Section 423(1) (b) of the Code of 1898. In the matter of appreciation of evidence of the powers of appellate Court are as wide as that of the trial Court. It has full power to review the evidence. It is entitled to go into the entire evidence and on relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused.
58. In the case of Sunder Singh v. State of Punjab; AIR 1962 SC 1211, Hon'ble Supreme Court has held that-
"the provisions of Section 423(1)(a) do not create a bar against the appellate Court considering indirectly and incidentally a case against the person, who was acquitted. If that becomes necessary, while dealing with the case in the appeal presented on behalf of the other accused, who are convicted.
In considering the evidence as a whole, the appellate Court may come to the conclusion that the evidence against the person acquitted was also good and need not have been discarded. When several persons are alleged to have committed an offence in furtherance of the common intention and all except one are acquitted, it is open to the appellate Court to find out on a re-appraisal of the evidence that some of the accused persons have been wrongly acquitted. Although it could not interfere with such acquittal in the absence of an appeal by the State Government, the effect of such a finding is not Page No.# 22/28 to reverse the order of acquittal into one of conviction or visit the acquitted person with criminal liability. The finding is relevant only in invoking against the convicted person his constructive criminality."
59. The general principle of the criminal liability is that it primarily attaches to the person who actually commits an offence and it is only such person that can be held guilty and punished for the offence. Section 34 and Section 149 of the IPC deal with the liability for constructive criminality. Section 149 creates a specific offence and postulates an assembly of 5 or more persons, having a common object. Section 34 has enacted a rule of co-extensive culpability, where offence is committed with common intention by more than one accused. The offence of criminal conspiracy punishable under Section 120(B) IPC, consists in the very agreement between two or more persons to commit a criminal offence. Before these sections can be applied the Court must find with certainty that there were at least two persons sharing the common intention of five persons sharing the common object of two persons entering into an agreement. The principle of vicarious liability does not depend upon the necessity to convict a requisite number of persons. It depends upon proof of facts, beyond reasonable doubt, which make such a principle applicable.
60. In the case of Harshad Singh -Vs. State of Gujarat; AIR 1977 SC 710, it was observed that the Hon'ble Supreme Court that-
"If some out of several accused are acquitted but the participating presence of plurality of assailants is proved, the conjunct culpability of the crime is inescapable. When more persons than one are prosecuted and one of them is convicted and others are acquitted, the order of acquittal cannot be set aside unless an appeal has been duly preferred in that behalf against the said order. But there is no bar to the appellate Court acting under Section 386 of Cr.P.C. to appreciate the whole evidence in a given case for the purpose of accepting or rejecting the appeal before it. The evidence examined as a whole may show that the appellant is guilty under Section 34 of the Indian Penal Code, 1860, having shared Page No.# 23/28 a common intention with the other accused who are acquitted and the acquittal of these persons are bad. There is nothing in law to prevent the appellate Court from expressing that view and recording that finding. The conviction of the appellant in such a case could be maintained on the basis of that finding. This is the correct legal approach to prevent miscarriage of justice. A wrong and erroneous order of acquittal though irreversible in the absence of an appeal by the State would not operate as a bar in recording constructive liability of the co-accused when concerted action with common intention stands proved."
61. In the case of Sukhram -vs- State of Uttar Pradesh; (1974) 2 SCR 518, Hon'ble Supreme Court has held that in view of the unambiguous evidence tendered by the prosecution in the Sessions Court no prejudice can be said to have caused to the appellant by reason of his conviction under Section 302 read with Section 34 IPC, even though the two other accused specifically named in the charge had been acquitted. The High Court was certain that there were three culprits and the appellant was one of them. It is clear that notwithstanding the charge, the acquittal of the two accused raise no bar to the conviction of the appellant under Section 302 read with Section 34 IPC.
62. In the case of Karan Singh vs. State of Madhya Pradesh; AIR 1965 SC 1037, the view held is that in spite of the acquittal of a person in one case it is open to the Court in another case to proceed on the basis if the evidence warrants it that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the latter case that the person tried in it was guilty of an offence under Section 34 by virtue of having committed the offence along with the acquitted person and there is nothing in principle to prevent this being done.
63. The aforesaid observations indicate that the High Court is entitled to evaluate the prosecution evidence and arrive at its conclusion. Such assessment is for the limited purpose of determining whether the infirmity which led to the acquittal of one of the accused persons could be availed of by the other accused, who had been convicted. On re-examination of the evidence, the appellate Court is free Page No.# 24/28 to reach its own conclusion which may be contrary to the one reached by the trial Court, while acquitting the co-accused. It can certainly come to an independent finding that evidence against the acquitted accused was satisfactory and would not have been discarded. On the basis of such finding, the appellate Court does not proceed to disturb the order of acquittal, which has become final. It can certainly consider the impact the effect of its conclusion on the case of the appellant before it. If on the evidence can unmistakably arrive at the conclusion that the appellant and acquitted person had acted in furtherance of their common intention, the conviction founded with the aid of Section 34, notwithstanding the finding that the acquitted person was in fact, one of the participants in the offence.
64. The authorities does show that it is not essential that more than one person should be convicted of the offence and that Section 34 IPC can be invoked if the Court is in a position to find that two or more persons are actually concerned in the criminal offence sharing a common intention. Where the evidence examined by the appellate Court unmistakably proves that the appellant was guilt under Section 34 IPC having shared a common intention with the other accused who were expressing that view and giving the finding and determining the deed of the appellant before it on the basis of that finding.
65. We have noticed a series of decisions where the view held is that when a definite number of known persons were alleged to have participated in the crime and all except the appellant were acquitted, the appellant alone cannot be convicted under Section 34 IPC and he would be liable only for the individual act of assault [vide Probhu Babaji Navle vs. State of Bombay AIR 1956 SC 51; Krishna Govind Patil vs. State of Maharasthra; (1964) 1 SCR 678; Baul vs. State of UP, (1968) 2 SCR 450, Maina Singh vs. State of Rajasthan, (1976) 3 SCR 651, Karnail Singh vs. State of Punjab; AIR 1977 SC 893 and Piara Singh vs. State of Punjab; (1980) 2 SCC 401].
66. In view of the aforesaid legal proposition, we are of the view that there is no bar to convict a person, if the other accused having been acquitted by the trial Court. In the case in hand, we have come Page No.# 25/28 to the conclusion that the co-accused was not only present on the spot, but had given the fatal blow in furtherance of the common intention shared with the appellant. But we could not reverse the acquittal of the co-accused in the absence of State-appeal.
67. Regarding motive and false implication as pointed out by learned Amicus Curiae about the involvement of the accused person, it is a settled principle of law that motive is not a sine qua non for the commission of the crime. Moreover, it takes a back seat in a case of direct ocular account of the commission of the offence by a particular person. In a case of direct evidence, the element of motive does not play such an important role as to cast any doubt on the credibility of the prosecution witnesses even if there be any doubts raised in this regard. If the eye-witnesses are trustworthy the motive attributed for the commission of crime may not be much relevant. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable evidence available on record unerringly establishes the guilt of the accused. Now-a-days murders are committed on very trivial matters. So far as the motive and its sufficiency for a crime of this diabolical nature, such as the instant case is concerned, the Apex Court in the case of Ranganayaki vs. State by Inspector of Police; (2004) 12 SCC 521, has held as under:-
"The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is....need not necessarily be proportionally grave to do grave crimes. Many murders have been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered."
68. In this connection, following observations given in the case of Thaman Kumar vs. Union Territory of Chandigarh; (2003) 6 SCC 380, are also relevant-
"There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessarily result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a find of guilt can safely be recorded, even if the motive for commission of the crime has not been proved."
Page No.# 26/28
69. As regards testimony of PW-1, an injured witness, in catena of cases, Hon'ble Apex Court has observed that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
70. Needless to state the position of law on the credibility and reliability of an injured witness is well-settled. In this regard, the Hon'ble SC in the case of Abdul Sayeed vs. State of MP; (2010) 10 SCC 259, had held as follows:-
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. When the witness to the occurrence had himself been injured in the incident, the testimony of such witness is generally considered to be very reliable as he is a witness that comes with a built-in guarantee of his presence at the scene of crime and is unlikely to spare its actual assailants in order to falsely implicate someone.
Convincing evidence is required to discredit an injured witness [Vide Ramlagan Singh V. State of Bihar [1973 [3] CC 881], Malkhan Singh V. State of U.P. [1975 [3] SCC 470], Machhi Singh V. State of Punjab [1983 [3] SCC 470], Appabhai V. State of Gujarat [1988 Supp SCC 241], Bonkya V. State of Maharashtra [1995 [6] SCC 447], Bhag Singh, Mohar Vs. State of U.P. [1997 [7] SCC 712], Dinesh Kumar V. State of Rajasthan [2008 [8] SCC 270], Vishnu V. State of Rajasthan [2009 [10] SCC 477], Annareddy Sambasiva Reddy V. State of A.P. [2009 [12] SCC 546], and Balraje V State of Maharashtra [2010 [6] SCC 673].
71. In the present case, a perusal of testimony of PW-1 and PW-3, it reveals that the incident which they have described, without there being any material improvement or contradictions. Admittedly, PW- 1 had sustained injury in the same incident. The presence of an injured eye witness (PW-1) at the time Page No.# 27/28 and place of occurrence cannot be doubted unless there are material contradictions in her deposition. She would not allow the real culprit to escape and falsely implicate the accused unless it is otherwise established through evidence. The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements, are not to be discarded. Further, the evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. If there be any exaggeration or immaterial embellishment in the evidence of an injured witness then they may be discarded from the evidence of the injured but not the whole evidence. Then the broad substratum of the prosecution version may be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded.
72. Appreciating the deposition of PW-1 and PW-3, on the touchstone of above principles, we find that they stood the test of cross-examination successfully and there are no embellishment or improvements in their evidence. It is true that PW-2 who is the wife of the deceased had lodged the report of the incident with the police station and has named all the accused persons including their roles therein. It is true that there are some discrepancies regarding her presence on the spot at the relevant time of incident, but that stood resolved to be taken into consideration that she was not present when the actual incident of assault took place, but the evidence of the injured witnesses, i.e., PW-1 and PW-3 is clear, cogent and reliable regarding their presence on the spot as they were injured on the same set of incident. The learned trial Court has elaborately discussed the evidence of those witnesses in proper perspective and has reached to a correct conclusion. We fully endorse its findings on all material points.
73. Much emphasis was laid by the learned Amicus Curiae that it was not a case of murder and injury and the complainant had falsely implicated the accused persons by concocting the prosecution story, but after analyzing the evidence led by the prosecution including the medical evidence of the Medical Officer regarding post-mortem examination and the injury report of PW-1 and PW-3, it reveals that no such suggestion have been given either to PW-1 or PW-3 or any other witnesses that the accused Page No.# 28/28 persons had been falsely implicated in the murder of deceased or the injury sustained by PW-1 and PW-
3.
74. It appears from the evidence of PW-1, the injured Manmotia Garh, that there was no cross- examination on behalf of the accused Phulsai Garh, i.e., the present appellant. PW-3 alleged that accused Gakul and Phulsai inflicted cuts on his sister Manmotia, with the pruning knife and they also assaulted the deceased Phulsai, as a result of which, he died on the spot. It appears that there is no cross-examination on the part of accused Phulsai Garh except a suggestion that after consuming liquor when his elder sister, elder brother, sister-in-law and he went to enjoy Puja festivities, they fell down and sustained injuries. There is no denial on the part of the accused appellant that he did not inflict any injury to the deceased or the injured persons.
75. Based on the overall facts and circumstances of the case at hand, we are of the view that the Judgment of the trial Court does not suffer from any infirmity in convicting the accused appellant. Hence, the Judgment and Order dated 18.10.2016, passed by the learned Additional Sessions Judge, (F.T.C.), Lakhimpur, North Lakhimpur in Sessions Case No.63(NL)2015, is affirmed.
76. In the result, appeal is dismissed. Send down the LCR.
JUDGE JUDGE Comparing Assistant