Gauhati High Court
Milan Baidya vs The State Of Assam on 15 February, 2011
Bench: Madan B.Lokur, H.Baruah
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh)
CASE NO CRL.A(J) 112 OF 2004
District Karimganj
1. MILAN BAIDYA
......Petitioner
Versus
1.THE STATE OF ASSAM
...... Respondent
1. MR.C BHATTACHARYYA
2.AMICUS CURIE ........Petitioner's Advocates
1.PP, ASSAM .........Respondent's Advocate BEFORE HON'BLE THE CHIEF JUSTICE MR.MADAN B.LOKUR HON'BLE MR.JUSTICE H.BARUAH DATE OF ORDER: 15/02/2011 In challenge is the Judgment and Order of conviction and sentence dated 17.07.2004 passed by the Sessions Judge, Karimganj in Sessions Case No.86 of 2003 whereby and whereunder the appellant herein namely Milon Baidya is convicted under section 302 IPC and sentenced to suffer life imprisonment with fine of Rs.500/- in default R.I.for 2 (two) months.
2.Being convicted as indicated above, the appellant has preferred this instant appeal from jail challenging legality and correctness of the impugned Judgment and Order of conviction and sentence. The brief facts are as follows :
Informant Smt.Champa Rani Baidya (PW6) is the sister of the appellant, Shri Milon Baidya while deceased Bithi Rani Baidya was their mother.Appellant and the deceased both resided under the same roof.Champa Rani Baidya (PW6) is married to Shri Jitendra Baidya (PW-7).On 15.10.2000 Smt.Champa Rani Baidya (PW-6) lodged an FIR (Exhibit-2) with the station house officer of Patharkandi Police Station alleging interalia that on that day at about 2 p.m.her elder brother Milon Baidya, the appellant in association of his wife, Smt.Usha Rani Baidya (PW-2) by entering into the house of her mother, Bithi Rani Baidya hit on her head with a sharp dao over some family dispute causing fatal injuries which resulted her death on the spot instantaneously.Police registered a case being Patharkandi P.S.Case No.159 of 2000 under section 302/32 IPC.Police started for the place of occurrence and found the dead body of Bithi Rani Baidya lying inside her house with bleeding injuries.Inquest on the body of the deceased was conducted in presence of the witness and prepared inquest report (Exhibit-4).Police also seized a dao lying by the side of the deceased in presence of the witnesses vide exhibit-3, the seizure memo.Police also prepared a sketch map of the place of occurrence.Dead body of the deceased was brought to Karimganj Civil Hospital for post mortem examination.Doctor conducted autopsy on the dead body and prepared P.M.Report (Exhibit-1).Witnesses were examined and after completion of the investigation charge sheeted the appellant under sections 449/302 IPC.It would be appropriate to say that during investigation of the case appellant Milon Baidya surrendered before the police.
3.The case was committed to the court of Session.The appellant stood charged under sections 449/302 IPC.Prosecution examined as many as 8 witnesses including the medical officer and one police officer partly responsible for the investigation of the case for the purpose of bringing home charges against the appellant.Appellant was examined under section 313 of the Cr.P.C.He pleaded his innocence.The defence case is of total denial.
4.The learned Sessions Judge after meticulous examination of the facts, evidence on record, both oral and documentary recorded a finding of guilt against the appellant under section 302 IPC and accordingly convicted and sentenced him as indicated above.
5.Death of Bithi Rani Baidya is an admitted fact as it appears from the facts and evidence on record.Deceased Bithi Rani Baidya died as a result of sustention of fatal injuries on her head as well as neck.Dr. Rabindra Nath Das (PW-5) while in the witness box deposed that on 16.10.2000 he was serving at Civil Hospital, Karimganj as Senior Medical and Health Officer.On that day he conducted autopsy on the dead body of Bithi Rani Baidya aged about 55 years, a resident of Baithakhal Bosti on police requisition and found as follows:-
On External Appearance An average built hindu female aged about 55 years approximately whose rigor mortis is present, Eye open, mouth closed.(1) one sharp injury over the left side of the chin extending toward mid part of the occipital region about 12.X 4.X bone deep (2) sharp injury over the left side of the fore head extending to the middle part of occipital region about 8.X 4.X bone deep (3) one sharp incised injury over the nape of the neck about 6.X 3.X bond deep.
Cranium and Spinal Canal Scalp, skull, vertebrae- As in 1, Membrane-Pale, Brain and spinal cord-Pale.
Thorax Walis ribs and cartilages - intact, Pleurae- Pale, Laryax and trachere-, Right lung, left lung, Pericardium - Pale, Heart and vessels - Empty and pale.
Abdomen Walls - intact, Peritonoum, Mouth, pharynx, oesophagus- Stomach and its contents- Contain little undigested food Small intestine and its contents- Contain semi and solid liquid.Large intestine and its contents- Contain little fual matter.Liver, Spleen, kidneys-Pale, Bladder-Contain lilttle urine, Organs of generation, extema, and internal Ut-non pregnant.
Muscles, Bones and Joints
-Nil-
Injuries are antimortem.
-In my opinion death is due to shock and haemorrhage resulted from sustained injuries.
Ext.1 is the post mortem report.Ext.1(1) is my signature.The dao is a sharp weapon and such injuries may be caused by dao..
6.From the doctor's evidence it would be apparent that the injuries discovered on the dead body of Bithi Rani Baidya were antimortem in nature and death occurred due to shock and haemorrhage resulted from sustained injuries.The evidence of the doctor, therefore, gives an indication that her death was not natural rather she had been killed by assailant(s) by inflicting fatal injuries on her head and neck as well.Now the issue before us is, who was/were the assailant/assailants.On this point we may turn the First Information Report (Exhibit-2) lodged by PW-6, Smt.Champa Rani Baidya.In the FIR it is alleged by Champa Rani Baidya that her elder brother, the appellant and his wife Smt.Usha Rani Baidya (PW-2) entered into the house of the deceased and inflicted injuries on her head and neck with the help of dao resulting her instantaneous death.FIR is not a substantive evidence though it contains the firsthand information of the incident.It can be used for the purpose of corroboration and contradiction.Therefore, on the basis of the First Information Report (Exhibit-2) it would not be prudent on our part to hold that appellant was the assailant.
7.In Ram Kumar Pande v.State of Madhya Pradesh, AIR 1975 SC 1026, the Supreme Court held :
9.No doubt, an FIR is a previous statement which can strictly speaking, be only used to corroborate or contradict the maker of it.But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known upto 9.15 p.m./ on 23.3.1970, were bound to have been communicated.If his daughter had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the FIR.We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case..
We are therefore, required to take assistance from the testimony of other witnesses that produced by the prosecution at the trial.From records we have already come across that prosecution examined 8 witnesses in all including Dr.Rabindra Nath Das (PW-5) and Prahlad Ch.Basak (PW-8), one of the Investigating Officers but to our surprise out of the 8 witnesses except PW-5, PW-6 and PW-8 all turned hostile.Sadhan Suklabaidya (PW-1) is a cultivator and a neighbour of the deceased while Smt.Usha Rani Baidya (PW-2) is the wife of the appellant.Lalit Mohan Baidya (PW-3) and Upendra Baidya (PW-4) are co- villagers of the deceased.PW-7 is the husband of Smt.Champa Rani Baidya (PW-6), the informant.All these witnesses turned hostile to the prosecution and therefore, no option left with the prosecution than to cross-examine them, with regard to their previous statements made to the Investigating Officer and recorded under section 161 Cr.P.C.But more surprisingly prosecution was unable to affirm those previous statements made to the Investigating Officer by the witnesses through the Investigating Officer who recorded their statements under section 161 Cr.P.C.bringing him as a witness unto the witness box.Now, in the facts situation how far their evidence can be relied upon for the purpose of affirming the conviction of the appellant as recorded by the learned Sessions Judge.
8.As we all know that a criminal case is built upon the edifice of evidence which is admissible in law.For that courts require witnesses.Free and fair trial is the very foundation of criminal Jurisprudence but very frequently we have come across that such trial is not always possible.For this there may be various reasons such as bribe, threatening, harassment, etc.Therefore, in some cases the prosecution witnesses turn hostile for these reasons during cross-examination.This hostility of the prosecution witnesses, therefore, causes damage to the prosecution in the process of bringing the offender(s) to book.
9.In this case as we have noticed that out of the 8 witnesses, 5 witnesses turned hostile.Minus these witnesses we are having Dr.Rabindra Nath Das (PW-5), Smt.Champa Rani Baidya (PW-6) and Prahlad Ch.Basak (PW-8).Now, the question before us how far the evidence of PW-5, PW-6 and PW-8 would be sufficient to bring home the charges against the appellant minus the evidence of hostile witnesses.Before dealing with the evidence of hostile witnesses, we must deal with the evidence of PW- 5, PW-6 and PW-8.Evidence of PW-5 is confined to the death of the deceased only.Therefore, his evidence would certainly be unable to project anything against the assailant.Champa Rani Baidya (PW-6) is the informant.She is not an eye witness to the occurrence.She in her evidence categorically stated that her mother, Bithi Rani Baidya died in her own residence at Baithakhal which is hardly 150/200 cubic feet away from their residence.Appellant is her elder brother.She also stated that her paternal uncle's daughter Krishna Rani, since deceased, informed that her brother, the appellant, cut his mother.Being informed thus, she called her husband Shri Jitendra Baidya (PW-7) and sent him to thana.When the officer-in-charge of the thana visited the place of occurrence (deceased's house) she handed over the FIR (Exhibit-2).She saw her mother lying dead in her room with the injuries on her head.She did not find the appellant at home.On query to his wife Usha Rani Baidya (PW-2) informed her that a quarrel ensued in between her mother, the deceased and the appellant over an issue of constructing a wall.The police personnel who visited the place of occurrence took away the dead body of her mother.She also stated that Milon, the appellant came out from jail after 3 months.She also stated that she did not ask anything about the occurrence to her brother, Milon nor he did say anything to her.The witness also stated that her deceased mother had no enmity with the neighbouring people.From her testimony as indicated above it would appear to us that she is not an eye witness to the occurrence and she had the information of killing of her mother by his elder brother Milon, the appellant from one Krishna, her paternal uncle's daughter and Smt.Usha Rani Baidya (PW-2), the appellant's wife.As Krishna died subsequent to the occurrence, the Investigating Officer was unable to examine her and therefore, the prosecution could not have the testimony of that lady for the purpose of prosecution of the appellant.Though PW-6 deposed that she had also been informed about the killing of her mother by the appellant by Smt.Usha Rani Baidya (PW-2), the wife of the appellant, she turned hostile to the prosecution.But PW-2, Smt.Usha Rani Baidya nowhere stated in her evidence that she informed PW-6, the informant about the killing of her mother-in-law by her husband, the appellant.Therefore, the claim of PW-6 that she got the firsthand information about the killing of her mother from PW-6 does not find support and therefore, we are unable to accept the evidence of PW-6 that she was informed by PW-2 about the killing of Bithi Rani Baidya by his son, the appellant herein.But from her evidence it can no doubt be gathered that her mother Bithi Rani Baidya received severe injuries on her head as well as on neck which resulted her instantaneous death inside her house.PW-8 is Prahlad Ch.Basak.He is one of the Investigating Officers of the case.As per his evidence he received the FIR (Exhibit-2) from PW-6 and accordingly he registered a case and took up the investigation himself.He also stated that on the basis of the FIR he did not make a General Diary entry.However, such entry was made at about 4.15 p.m.on the basis of the information supplied by one Sadhan Suklabaidya (PW-1).The GD entry so entered was in regard to hacking of Bithi Rani Baidya by his son, the appellant herein.He also stated that immediately after receipt of the oral information supplied to by PW-1, GDE No.353 dated 15.10.2000 was made and thereafter rushed to the place of occurrence.He prepared a sketch map of the P.O.He also seized a dao with blood stains found lying near the deceased Bithi Rani Baidya vide Exhibit-3.He himself conducted the inquest on the dead body of Bithi Rani Baidya and prepared inquest (Exhibit-4).He obtained signature of Usha Baidya (PW-2), Lalit Mohan Baidya (PW-3) and Sadhan Suklabaidya (PW-1) as witnesses to the inquest.The dead body of Bithi Rani Baidya was sent to hospital for post mortem examination.This witness also stated that one Someswar Boro recorded the statement of the witnesses and submitted charge sheet.
10.From the testimony of these witnesses it would appear that PW-6 lodged the FIR (exhibit-2) but he proceeded to the place of occurrence on the basis of the GD entry No.353 dated 15.10.2000 entry made vide oral information supplied to him by one Sadhan Suklabaidya (PW-1).From his evidence it would also appear to us that he seized a dao with blood stains found lying near the dead body of Bithi Rani Baidya vide Exhibit-3 and conducted inquest on the dead body.It would also appear from his evidence that he partly investigated the case.He, at no point of time, during his investigation did record the statement of the witnesses under section 161 Cr.P.C.One Someswar Boro, after him, took up the investigation of the case and during investigation he recorded his statement of the witnesses and submitted charge sheet.
11.Thus, from the evidence of PW-6 we are unable to get any assistance in the context of complicity of the appellant that it was he who inflicted the fatal injuries on her mother on the relevant date and time.Though apparently, she (PW-6) appears to be an independent witness but her testimony failed to lend any support to the case of the prosecution regarding the involvement of the appellant with the offence.
12.Though witness Sadhan Suklabaidya (PW-1), Smt.Usha Rani Baidya (PW-2), Lalit Mohan Baidya (PW-
3), Upendra Baidya (PW-4) and Jitendra Baidya (PW-7) all turned hostile yet their evidence are found not hostile in regard to discovery of Bithi Rani Baidya lying dead inside her house with bleeding injuries on her head and neck.PW-1 in his evidence stated that on the day of occurrence when returned from market he heard about cutting of Bithi Rani Baidya and accordingly, he visited her house at about 3 p.m.and found her lying dead on the floor of her house.He saw cut injuries on her neck but did not find the appellant present in the house.Usha Rani Baidya (PW-2) was found present but she did not divulge anything about the death of Bithi Rani Baidya, her mother-in-law.He also stated that police came to the place of occurrence, conducted inquest on the dead body.PW-2, Smt.Usha Rani Baidya, the wife of the appellant also stated in her evidence that she and her husband with 2 children were living under the same roof with deceased Bithi Rani Baidya, her mother-in-law and one Krishna Baidya and her mother were their tenants.She also stated that on the day of occurrence deceased Bithi Rani Baidya, her mother-in-law asked her husband, Milon, the appellant to erect a wall of the house and for that purpose of both the deceased and the appellant were sharpening the bamboo pieces with dao.After some time, Bithi Rani Baidya, the deceased asked Milon to go out and take some other work and Milon accordingly went out for cutting bamboo.She also stated that she went to the pond with the children for bath.On return she found her mother-in-law dead inside the room.She raised alarm.Neighbouring people assembled.She also stated that she was taken away by police personnel and after 3 days she came home.Her husband Milon also came home after 3 months.She also stated that their tenant Krishna and her mother expressed their ignorance about the death of her mother-in-law, Bithi Rani Baidya.She also stated that her mother-in-law sustained cut injuries on her head and neck and police during investigation had taken away a dao found lying near the dead body.
13.PW-3 Lalit Mohan Baidya also deposed that having heard the news about the death of Bithi Rani Baidya he went to the place of occurrence and on his arrival found Bithi Rani Baidya lying dead on the floor inside her house.A dao was also found lying near the dead body.He saw Usha Rani Baidya (PW-2) crying but he did not ask anything to her.Police seized the dao in presence of him and others and he put his signature in the seizure memo as a witness to the seizure of the dao.Upendra Baidya (PW-4) is the father-in-law of Champa Rani Baidya (PW-6).He deposed that he had been to the house of Bithi Rani Baidya knowing about the news of death of Bithi Rani Baidya and on his arrival he found Bithi Rani Baidya lying dead inside her house.Appellant was not found present there.He saw cut injuries on the head of the deceased Bithi Rani Baidya.He also stated that he met Milon, the appellant after 3 months of the occurrence but did not ask anything about the occurrence.PW-7 is Jitendra Baidya, son of Shri Upendra Baidya (PW-4).His evidence is that at the time of occurrence he was at bazar situated nearby his house and some boys at 2.30 p.m.went to the saloon and informed about the cutting of his mother- in-law and accordingly rushed thereto.On his arrival he saw a gathering and his wife (PW-6) informed about the occurrence.He stated that on his arrival he found police personnel and his mother-in-law's dead body lying inside her room.
14.From the scrutiny of the evidence on record of the witnesses as indicated above, it would appear to us that before calling these witnesses hostile to the prosecution they deposed at the trial what they had witnessed on their arrival at the place of occurrence and heard.Even if we take the evidence of these witnesses as indicated above, except the factum of death of Bithi Rani Baidya who was found lying dead inside her residence, sustention of injuries on her person and seizure of a dao, nothing substantial is appearing in their evidence in regard to the complicity of the appellant.We have already stated herein before that death of Bithi Rani Baidya is not a disputed fact and also the existence of the injuries that discovered by PW-5 on the dead body while conducting autopsy.Therefore, evidence of these witnesses to the extent as indicated above would not come in aid to the prosecution in bringing home of the charge under section 302 IPC against the appellant.
15.Now the issue before us is, how far the evidence of hostile witness can be acted upon.Before dealing with the subject we are constrained to adopt an unfavourable view as against the prosecution in regard to the manner of conducting the prosecution.From the records as well the evidence of PW-8 it would appear to us that the investigation of the case was conducted by 2 (two) Investigating Officers namely Prahlad Ch.Basak (PW-8) and Sri Someswar Boro.According to PW-8, on his transfer, investigation was entrusted with Someswar Boro who recorded the statement of the witnesses and submitted charge sheet.A witness is declared hostile in course of his examination, if his evidence is not found favourable by the party who calls him/her with reference to his/her previous statement recorded under section 161 Cr.P.C.by the Investigating Officer in the context of the occurrence.From the deposition of PW-1, PW-2, PW-3, PW-4 and PW-7, we have come across that these witnesses were confronted by the prosecution with their previous statement recorded under section 161 Cr.P.C.but interestingly having had the knowledge with the Public Prosecutor about their examination by Someswar Boro under section 161 Cr.P.C.he did not make any attempt to bring said Someswar Boro unto the witness box for the purpose of affirming such confrontation exhibited by the witnesses rather sat tight over the matter leaving the whole prosecution uncertain and unacceptable.When a witness is confronted with his previous statement by the party calling him/her, in order to ascertain the acceptability of such statement made to the I.O.recorded under section 161 Cr.P.C., the Investigating Officer who recorded such statement sought to have been brought to the witness box to affirm such statements.The Prosecutor, however, did not make any attempt to bring the Investigating Officer Sri Someswar Boro to the witness box to complete the process.In view of non-examination of the I.O.concerned, the hostility exhibited by the witnesses remained and nothing substantial can be derived therefrom for the purpose of bringing home the charge against the accused.Non-examination of Someswar Boro one of the Investigating Officers of this case appears fatal to the prosecution.
16.In the case of Gura Singh, Appellant v.State of Rajasthan, Respondent reported in AIR 2001 SUPREME COURT 330 in para 11 and 12 the Apex Court held as under :-
11.There appears to be misconception regarding the effect on the testimony of a witness declared hostile.It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration.This Court in Bhagwan Singh v.State of Haryana, AIR 1976 SC 202 : (1976 Cri LJ 203), held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence.The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness.In Rabindra Kumar Dey v.State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173), it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile.Merely on this ground his whole testimony cannot be excluded from consideration.In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether.It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony.In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.
12.The terms "hostile", .adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act.The terms "hostile witness", .adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law.The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness".Under the common law a hostile witness is described as one who is not desirous of telling he truth at the instance of the party calling him and a unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test.In India the right to cross-
examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872.Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re- examination except with the permission of the court.The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved.Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances.Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness.Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v.Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295) (Paras 37, 38, 39 and 51) held:
"To steer clear of the controversy over the meaning of the terms 'hostile' witness, 'adverse' witness, 'unfavourable' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared 'adverse' or 'hostile'.Whether it be the grant of permission under Sec.142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross- examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v.Prasannamoyi), AIR 1922 PC 409.The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of 'hostility'.It is to be liberally exercised whenever the court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice.The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness.Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavourable', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party.Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction.In India, this can be done with the consent of the court under S.155.Under the English Act of 1865, a party calling the witness, can 'cross- examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'.As already noticed, no such condition has been laid down in Ss.154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness.In this respect, the Indian Evidence Act is in advance of the English Law.The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernised version of S.3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court.The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements.In Prafulla Kumar Sarkar v.Emperor, ILR 58 Cal 1404 : (AIR 1931 Cal.401 :
(1931 (32) Cri LJ 768) (FB)an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'.It was emphasized that these departures from English Law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
xxxxx xxx.
From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross- examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether.It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony.If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it.If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
The Apex Court while dealing with the case of Mahesh Son of Janardhan Gonnade, Appellant versus State of Maharashtra, Respondent reported in (2008) 13 SCC 271 held that though the witnesses PW-1, PW-2, PW-3 and PW-15 turned hostile when examined in court, on account of recording the statement of the witnesses under section 161 and 164 Cr.P.C.by the I.O.and the Special Judicial Magistrate correctly, the testimony of the I.O.and the Special Judicial Magistrate were not disbelieved and discredited.The Apex Court held that merely because the witnesses as indicated above, did not support the prosecution case, that would not, in the circumstances, lead to the conclusion that appellant was innocent.The Apex Court while not discrediting and disbelieving the evidence of the I.O.and the Special Judicial Magistrate recorded that the I.O.having had no animus against the appellant to frame a false case and when the credibility of the I.O.could not be shaken in the cross examination and recorded by him correctly no plausible and tenable reasons would come into forefront to doubt his sincerity, honesty in the conduct of the investigation of the case.The Apex Court while dealing with the case (supra) in paragraphs 47 to 52 held as under :
47.PW Prakash, who lodged the report (Ext.28) of the incident, stated that on hearing Sunita's shouts .wachawa wachawa., he rushed to the spot of incident and noticed Sunita lying with bleeding injuries on the roadside in front of the house of one Ganeshe Tahsildar and he also spotted Nirmalabai and one man lying on the ground in an injured condition.The injured man had uttered .golya kadha golya kadha..This witness, no doubt, has turned hostile to the prosecution and in the cross-examination by the learned Additional Public Prosecutor he denied having made portion marked .A.of his statement to the police to the extent that Mahesh was standing near the place where Sunita, her husband and Nirmalabai were lying with bleeding injuries, holding gun between his knees and one knife in his hand and at that time the appellant was shouting .arrest him arrest him..
48.PW 1, the complainant, is a medical practitioner and belongs to Village Paoni.He knew the deceased Sunita, her mother Nirmalabai and the appellant Mahesh.His dispensary is at a distance of about fifty feet from the place of occurrence.His evidence is that Sunita, Nirmalabai and the man were having bleeding injuries on their person.He lifted them into a rickshaw and took them to Government Hospital at Paoni, where he assisted the medical officer in giving medical treatment to the injured persons.At about 7.30 or 8.00 p.m.as per his version, Sunita died in the hospital whereas Nirmalabai and the said injured man were sent for better medical treatment to Medical College Hospital at Nagpur.He stated that he reported the entire incident to the police in the police station and made a report (Ext.28) which was signed by him.The testimony of this witness also corroborates the testimony of injured PW Sanjay and other non-injured eyewitnesses to the extent that deceased Sunita, PW Sanjay and Nirmalabai were lying with bleeding injuries at the scene of occurrence on the day of the incident.
49.It is the evidence of PW PSI Dhimole that portion marked .A.appearing in the statement of PW 1 was recorded by him correctly.The defence has not brought on record any evidence to show why the investigating officer had recorded mark .A.portion of the statement of PW 1 incorrectly.If PW 1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case.In these circumstances, we are of the view that PW 1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution.
50.Laxmibai (PW 2) and Bilkish Begum (PW 3) have also followed the same trend which PW 1 had adopted.They were confronted by the learned Additional Public Prosecutor with portion marked .A.of their earlier statements made to the police implicating the appellant as an assailant, but later on they have resiled from their earlier statements perhaps for some undisclosed reasons and considerations, which are confined to themselves.The evidence of PSI Dhimole (PW 18) has proved on record that he had recorded marked portion.A.of the statements made by PWs 2 and 3 during investigation correctly and nothing more was added by him in their statements.
51.Nilkanth (PW 15).is a resident of Village Paoni and he is acquainted with the appellant.It is his evidence that at about 6.00 or 6.30 p.m.on the day of incident, he was sitting on a bench in front of the tea stall of one Gopal Somnathe, when he saw Nirmalabai, her daughter and son-in-law coming from the bridge side of the river and going to the house of Nirmalabai.He heard some sound emanating from the western side of the road.When he was going to his house, he came to know near the house of one Parate that Nirmalabai's son-in-law was given beatings.He returned to the shop of Gopal Somnathe where he was told that the son-in-law of Nirmalabai had been taken to the hospital in an injured condition.He was allowed to be cross-examined by the learned Additional Public Prosecutor when he admitted that during investigation of this case the police had recorded his statement and later on the Special Judicial Magistrate had also recorded his statement under Section 164 CrPC along with four or five more witnesses.He has denied having made statement to the Special Judicial Magistrate to the extent that on the day of the incident he saw the appellant armed with a gun and giving knife-blows on the person of Sunita and her mother Nirmalabai.
52.Shri Prabhakar (PW 17), Special Judicial Magistrate on 5-4-1988 recorded the statements of PW Nilkanth, PW Laxmibai, PW Archana and PW Rupesh under section 164 CrPC.On 6-4-1988, the Special Judicial Magistrate recorded the statements of PW Prakash, the complainant.Copies of the statements were placed on record (Ext.79, Ext.80, Ext.81, Ext.82 and Ext.83) respectively.The Special Judicial Magistrate denied the suggestion of the defence that he had prepared the statements of the said witness on the basis of the statements recorded by the police.PW Prakash, PW Laxmi and PW Nilkanth could not explain any reason why the Special Judicial Magistrate was interested in recording the portions of their statements incorrectly in which they had named the appellant as an author of the crime.The testimony of the investigating officer also would not ipso facto give rise to doubt its credibility when the same was no shaken in the cross-examination and he has no animus against the appellant to frame him in a false case.Merely because PWs 1, 2, 3 and 15 did not support the prosecution case when they were examined in the Court, that would not, in the circumstances, lead to the conclusion that the appellant was innocent.The investigating officer and the Special Judicial Magistrate both have categorically stated that they had correctly recorded the statements of PWs 1, 2, 3 and 15 under Section 161 CrPC and Section 164 CrPC respectively.The testimony of the investigating officer and the Special Judicial Magistrate in no circumstances and for no good reason could be disbelieved and discredited and we, accordingly, accept their evidence in its entirety without any hesitation.
17.In the case of Gura Singh (supra) the Apex Court while dealing with the testimony of the hostile witness observed that it is a misconceived notion that merely because a witness is declared hostile his entire evidence could be excluded or rendered unworthy of consideration.In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether.It is for the court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony.In the appropriate cases the court can rely upon the part of the testimony of such witness if that part of the deposition is found to be creditworthy.
18.Therefore, the Hon'ble Apex Court has not laid a rule that the entire testimony of a hostile witness is to be discredited.The Apex Court is of the opinion that on account of hostility the entire evidence of a particular witness should not be discarded, the part of the evidence, if can still be believed, can be acted upon.
19.From the above ratio as laid down by the Apex Court in regard to the testimony of a hostile witness and its acceptance, in our present case, we are to see whether evidence of PW-1, PW-2, PW-3, PW-4 and PW-7 can be accepted.We have already indicated herein before that the Prosecutor did not call the Investigating Officer who recorded the statements of the witnesses under section 161 Cr.P.C.unto the witness box to affirm the confronted previous statement of those witnesses but their evidence recorded in chief seemed to have corroborated each other in respect of death of Bithi Rani Baidya, the injuries sustained by her, seizure of a dao stained with blood and conduct of inquest on the dead body by the I.O.(PW-8).The question that poses at this stage is whether the corroborated facts as indicated above would lead to a conclusion that it was the appellant and the appellant alone who committed murder of Bithi Rani Baidya.The learned Sessions Judge, after going through the evidence on record, after taking the grains from the shaft as claimed, recorded 13 numbers of circumstances which according to him would lead to a conclusion of the guilt of the appellant.In our considered view those circumstances as referred to by the learned Sessions Judge in his Judgment impugned in this appeal would not form a complete chain to show the complicity/involvement of the appellant.Evidence is very much there in respect of discovery of the dead body of Bithi Rani Baidya inside her room with sharp cut injuries on the head, face and neck as well.There is also evidence that a dao stained with blood was found lying near the dead body and it was seized by police.There is also evidence available that deceased asked her son, the appellant to erect a fencing on the fateful day and both deceased and the appellant were stated to have been sharpening some pieces of bamboo by dao.There is also evidence available on record that the witness who visited the place of occurrence after hearing the death of Bithi Rani Baidya did not find the appellant present in his residence.These circumstances together, however, cannot form a complete chain pointing guilt towards the accused appellant.PW-2, Usha Rani Baidya, the wife of the appellant though stated that deceased and her husband, the appellant were sharpening bamboo pieces together with the help of dao for the purpose of erecting a fencing, on being asked by the deceased, the appellant left the place for cutting bamboo in a different place.Thereafter, she left for the pond with her children for bath.When returned she found her mother-in-law lying dead inside her room with sharp cut bleeding injuries.There is no evidence forthcoming from her testimony that she left for the pond with her children before leaving of her husband, the appellant for the purpose of cutting bamboo somewhere else.So, the chain is seem to have not complete in view of evidence of PW-2.The circumstances which are referred to in the impugned judgment, therefore, cannot be said to have formed a complete chain pointing the guilt of the appellant.To our view the learned Sessions Judge failed to read the evidence on record in its proper perspective and erroneously held that a chain is complete pointing the guilt of the appellant.
20.It is in the evidence on record that a dao was found lying near the death body of Bithi Rani Baidya which was seized by PW-8 in presence of the witnesses.According to the prosecution the said dao contained blood stains but interestingly the Investigating Officer did not take any step to get the dao examined by an expert of the Forensic Science Laboratory to ascertain whether the said dao had been used in killing the deceased Bithi Rani Baidya.That apart, during trial, the seized dao was not produced for identification by the witnesses in whose presence the same had been seized by PW-8.Apparently, therefore, there appears some lacunae in the investigation of the case which could not be substituted by the evidence available on record.Moreover, there is no iota of evidence to show that the seized dao belonged to the accused.To our considered view the theory of last seen together would also not come in aid in view of evidence of PW-2.She stated that appellant left the house as desired by his mother for cutting bamboo and thereafter she left for bath with her children to pond.
21.It would also appear from the evidence on record that the appellant was not found present at the time of discovery of the dead body by the witnesses inside her room.PW-2 and PW-6 stated in their evidence that appellant came home after 3 months after enlargement of him on bail.It is also in evidence that he surrendered.Subsequent conduct is relevant per provision of section 8 of the Indian Evidence Act, 1872.As per the evidence of PW-2, appellant went out to a different place for the purpose of cutting bamboo per request of his mother deceased Bithi Rani Baidya Baidya.On the situation, it cannot be said on account of his absence from home when the witnesses visited the place of occurrence that after committing the crime he fled away and therefore, he was not found present at the place of occurrence.When evidence is available that he was in jail in connection with the case and came home after 3 months, his absence from home cannot be treated as subsequent conduct and would have no application.
22.Thus, from the meticulous scrutiny of the facts and evidence on record we are unable to hold that the appellant is guilty of murder.We find no reasonable ground to accept the findings of the Trial Judge.There is enough ground to interfere with the impugned Judgment and Order of conviction and sentence and accordingly we do so.
23.In the result, the appeal succeeds.The impugned Judgment and Order of conviction and sentence are set aside.Accused be set at liberty forthwith if he is not wanted in any other case.
24.For rendering valuable assistance to this court by the Amicus Curiae in deciding this appeal, we quantify Rs.5000/- as fee which shall be paid by the State.