Gauhati High Court
Sri Biri Talin vs The State Of Arunachal Pradesh And Anr on 4 January, 2022
Bench: Achintya Malla Bujor Barua, Robin Phukan
Page No.# 1/24
GAHC010188062018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./277/2018
SRI BIRI TALIN
S/O BIRI TABIAK, VILL. CHIMPU, P.O. GANGA, P.S. ITANAGAR, DIST.
PAPUMPARE, ARUNACHAL PRADESH, PIN 791113
VERSUS
THE STATE OF ARUNACHAL PRADESH AND ANR
THROUGH THE PP, ARUNACHAL PRADESH.
2:SHRI DIPEN MAGA
VILL. RAGA
P.S. RAGA
DIST. LOWER SUBANSIRI
ARUNACHAL PRADESH. PRESENT ADDRESS- E SECTOR
QTR NO. 309
T/III
NAHARLAGUN
ARUNACHAL PRADESH
PIN 79111
Advocate for the Petitioner : MR. A BHATTACHARJEE
Advocate for the Respondent : PP, A P
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
Date : 04-01-2022
Page No.# 2/24
JUDGMENT & ORDER (ORAL)
(AM Bujor Barua, J) Heard Mr. D Mozumdar, learned senior counsel assisted by Mr. S Biswas, learned counsel for the appellant. Also heard Mr. NNB Choudhury, learned Public Prosecutor for the State of Arunachal Pradesh assisted by Mr. G Alam, learned counsel for the informant/respondent No.2.
2. An ejahar was lodged by Dipin Maga, son of Bapu Maga on 18.09.2006 before the Officer-in-Charge of Naharlagun Police Station inter alia stating that on the previous night at around 11.30 P.M., when he along with his friends Subash Jeram (since deceased), Nitu Murterm, Vijoy Dasi and Chaba were returning back from Naharlagun, two girls and the accused Talin Biri were in a vehicle on the bridge over the Dikrong river. As they reached the place of occurrence, the accused Talin Biri was furious and had challenged the informant and his other friends resulting in a hot argument with the deceased Subash Jeram and in furtherance thereof, the accused Talin Biri had assaulted the deceased Subash Jeram with a dao which resulted in dao injuries causing his death. It is stated in the ejahar that the reason for the killing was not known. The learned Sessions Judge West Sessions Division Yupia (A.P) had framed the following charges against the accused who is referred to as Biri Talin:
"Firstly: That you on 17.09.2006, at about 2300 Hrs. at Dikrong Bridget, you intentionally committed murder of Lt. Subash Jeram by cutting him with a dao and thereby committed an offence punishable under Section 302 of the IPC, and within my cognizance."
Secondly: That on the same day, time and place, you intentionally causing disappearance of evidence of offence (dao) to screen offence and thereby committed an offence punishable Page No.# 3/24 under Section 201 of the IPC and within my cognizance."
3. In course of the trial, the prosecution examined 9(nine) witnesses, whereas the accused Biri Talin deposed himself as DW-1. Three statements under Section 164 Cr.P.C. made by Vijoy Dasi, the informant Dipin Maga and Tabu Jeke were exhibited as Exhibits 1, 3 and 4 respectively. Apart from the aforesaid statements under Section 164 Cr.P.C., the statement under Section 164 Cr.P.C. of Nido Pumin, Debia Rupa, Nitu Murtem and the accused Biri Talin were also exhibited as Exhibits 13, 14, 15 and 16 respectively.
4. PW-1, Vijay Dasi who is also one of the friends of the informant Dipin Maga referred in the ejahar in his deposition as PW-1 stated that the date of occurrence was on a Viswakarma Puja occasion and at that time he went to the house of Nitu Murtem at Abotani Colony, Itanagar and Tabu Jeke and the deceased Subash Jeram also came. After washing their motorcycles, they decided to roam around as it was puja occasion and it was evening time. The witnesses deposed that from Itanagar they went to Doimukh side and all four were standing on the Doimukh bridge, when suddenly one white car came at the bridge and the accused came out from the car with a dao in his right hand and without saying anything started assaulting the deceased Subash Jeram with his dao all over his body. The witness also stated that the informant Dipin Maga and one more lady were present in the vehicle along with the accused Biri Talin at that time. Thereafter, the victim was lifted and put in the back seat of the vehicle and was taken to General Hospital, Naharlagun.
Page No.# 4/24
5. PW-2, the informant Dipin Maga in his deposition stated that on 17.09.2006 at about 9 P.M. he had received a call from his friend Nido Pumin calling them to Doimukh near St. Thomas School and accordingly, he along with his friends Tabu Jeke, Nitin Murtem, Vijay Dasi went to the place on two bikes. Upon reaching the place, they found Nido Pumin and Debia Rupa and Debia Rupa told that her friend was going on a vehicle so she required a telephone to call her friend and accordingly asked for a mobile phone from the witness. As the mobile phone of the witness did not have the required balance, the mobile phone of the deceased Subash Jeram was given to Debia Rupa, who had a conversation with her friend. Thereafter Debia Rupa and Nido Pumin left the place and after that the witness and his friends also left the place and on the way had some local liquor at Doimukh. When they were going back towards Naharlagun one phone call came in the mobile phone of the deceased Subash Jeram. The witness found that the phone call was from Nido Pumin and on being asked by Nido Pumin they waited for her for some time. As there was delay in Nido Pumin arriving at the place, the witness and his friends left for Naharlagun. While going towards Naharlagun when they were crossing the bridge over the Dikrong river, Nido Pumin again called in the mobile phone of the deceased and told that they are in the bridge in a vehicle which is a silver coloured Wagon R car which belonged to the accused Biri Talin. The witnesses stated that when he went towards the vehicle he saw the accused Biri Talin coming out from the vehicle and enquired as to who was talking on the mobile phone and he took the key of the motorcycle and forcibly put him inside the vehicle. Thereafter, the deceased started his vehicle towards Nirjuli side while his other friends were waiting. Then the accused made a call on the given mobile phone of the deceased Subash Jeram and when his mobile phone rang, the accused Biri Talin charged towards Page No.# 5/24 the deceased Subash Jeram telling him that it was he was who had made the phone call and then started assaulting the deceased with a dao. Thereafter all of them lifted the deceased Subash Jeram in the vehicle and took him to the hospital for treatment.
6. PW-3 Tabu Jeke who is not one of the persons referred in the ejahar to be a friends of the informant who were with him, in his deposition stated that on 17.06.2006 at about 7 P.M., he along with his other friends Vijay Dasi were sitting in the house of Nitu Murtem at Abotani Colony. The informant Dipin Maga and the deceased Subash Jeram came and asked him to go for a ride and then five persons boarded two motorcycle and went towards Doimukh side and the informant Dipin Maga and the deceased were in one motorcycle. After sometime they came from Doimukh side and went towards Naharlagun. On the way in the bridge over the Dikrong river they saw a Wagon R vehicle was parked on the bridge and the vehicle belonged to the accused Biri Talin. When they almost crossed the bridge suddenly the informant Dipin Maga asked them to stop. Thereafter the informant Dipin Maga went towards the vehicle parked in the bridge and the accused Biri Talin came out of the vehicle took the dao and told that whosoever comes will be cut with the dao. Thereafter the witness heard a mobile phone ringing and saw the accused assaulting the deceased Subash Jeram with the dao. At that time, he was standing at a distance of about 3 to 4 meters. Thereafter the deceased was lifted and put in a vehicle and taken to the hospital.
7. We take note of that the PW-2 informant Dipin Maga in his deposition also stated that at the time when the occurrence had taken place it was around Page No.# 6/24 11P.M and there was no light. But it was visible as there was moonlight.
8. PW-4 Dr. Rina Das who had conducted the post mortem examination on the deceased had found the following injuries:
I- "EXTRANAL APPEARANCE
1. Condition of subject stout emaciated, decomposed etc:
A moderately built body of fair complexion, face- pale, lips are cyanosed, eyes are closed, mouth is partially open.
Height is 5 feet, 9 inches. Rigor mortis is present on lower limbs, partially present on upper limbs and trunk.
The body is wearing blue jeans pant & dark blue underwears.
2. Wounds- positions and character:
Cut injury is present on left lateral area of neck, 1 cm x0.5 cm x 0.25 cm
3. Bruise Position size and nature:
Nil
4. Mark of ligature on neck dissection, etc:
Nil II- CRANIUM AND SPINAL CANAL
1. Scalp, Skull, Vertebrae:
Cut injuries are present on posterior region of head-
i) On right parietal region of head, 9cm x 1 cm x 0.5 cm in dimension.
ii) Occipital region of head- 4 cm x 1 cm x 0.5 cm in dimension.
iii) Occipital region of head extending into rt. Parietal region - 8 cm x 1 cm x 0.5 cm in dimension.
2. Membrane:
NAD
3. Brain and spinal cord:
NAD Page No.# 7/24 III. THORAX
1. Walls ribs and cartilages : (1) Cut Injury (+) on back; in middle of upper part; 3 cm x 0.5 cm x 0.5 cm in dimension, exposing cut muscle layers. (2) Cut Injury (+) on upper part of back, extending upto left shoulder region, 10 cm x 0.5 cm x 0.5 cm in dimensions; exposing cut muscles, fasciae.
2. Pleurae : NAD
3. Laryax and trachea : NAD
4. Right lung : NAD
5. Left lung : NAD
6. Pericardium : NAD
7. Heart : Chambers of heart are almost empty
8. Vessels : NAD IV - ABDOMEN
1. Walls : An old sear(+) on left iliac region of abdomen
2. Peritoneum : NAD
3. Mouth, pharyanx, oesophagus : NAD
4. Stomach and its contents : Partially digested food matter(+)
5. Small intestine and its contents : Semiliquid content(+)
6. Large intestine and its contents : Faecal matter(+)
7. Liver : NAD
8. Spleen : NAD
9. Kidneys : NAD
10. Bladder : NAD
11. Organs of generation external and internal : NAD V- MUSCLES, BONES AND JOINTS
1. Injury : Cut Injury (+) on middle part of left forearm; 8 cm x 3 cm x 0.5 cm in dimension. Cut Injury on Rt. knee - 1 cm x 0.5 cm x 0.25 cm in dimension.
Page No.# 8/24
2. Disease or deformity :
3. Fracture :
4. Dislocation : Dislocation of left shoulder joint is present. Fracture seen with dislocation of patella of rt.knee joint is present.
MORE DETAILED DECRIPTION OF INJURY OR DISEASE Cut Injury are present in posterior region of head -
i) On right parietal region of head - 9 cm x 1 cm x 0.5 cm in dimension.
ii) Occipital region of head - 4 cm x 1 cm x 0.5 cm in dimension.
iii) Occipital region of head, extending into right parietal region - 8 cm x 1 cm x 0.5 cm in dimension.
Cut injury is present on left parietal area of neck- 1 cm x 0.5 cm x 0.25 cm in dimension.
Cut Injury is present on back & adjoining areas of left shoulder-
i) 10 cm x 0.5 cm x 0.5 cm in dimension
ii) 3 cm x 0.5 cm x 0.25 cm in dimension
Dislocation of left shoulder is present.
Cut Injury is present on left forearm - 8 cm x 3 cm x 0.5 cm Fracture of both bones of left forearm is present.
Cut Injury is present on right knee - 1 cm x 0.5 cm x 0.25 cm in dimension.
Fracture seen with dislocation of patella of rt.knee joint is present.
OPNION OF ASSISTANT SURGEON AS TO CAUSE OF DEATH SUB- ASSISTANT SURGEON In my opinion, the cause of death is shock, associated with anaemia, as a result of severe haemorrhage from extensive cut injuries. "
Page No.# 9/24
9. PW-5 Nido Pumin, one of the ladies who is stated to have been present at the place of occurrence by PW-2 in her deposition stated that the incident took place between Doimukh and Nirjuli on 17.09.2006 at about 9.30 P.M., but she does not remember the exact time when it took place. The witness stated that the informant PW-2 is the younger brother of her sister-in-law and he along with four friends came to their house at Midpu. Her friend Debia Rupa @ Pipi asked for a mobile phone from the informant Dipin Maga and as the mobile phone of Dipin Maga did not have outgoing facility, Debia Rupa took the mobile phone of the deceased to make a phone call. She told her that a friend of her husband would come to her house in a Wagon R vehicle. In the meantime, the witness saw the Wagon R vehicle passing by towards Debia Rupa's house and then Debia Rupa made a call to the friend of her husband and asked him to wait for her in her house and that call was made through the mobile phone of the deceased. Then Debia Rupa had left for her house and Dipin Maga and his friends also left for their house. After sometime Debia Rupa came to her house along with the accused and requested her to accompany them to the house of her husband at Nirjuli. On reaching Doimukh in the Wagon R vehicle witness received a phone call and Dipin Maga told her that they were on a bridge. On reaching the bridge the witness saw the motorcycles were parked on the other side of the bridge and she asked the accused to stop the vehicle. Then she came out of the vehicle and shouted at Dipin Maga to which he responded and she then asked Dipin Maga as to why they were roaming around in the night. Then suddenly the accused came and asked Dipin Maga whether the phone number belonged to him. Then Dipin Maga replied that phone number did not belong to him. As it was dark, the four other persons were little afraid and they started their motorcycle. At that stage, the witnesses went towards the vehicle Page No.# 10/24 where Debia Rupa was present. Then the witness asked as to where the accused had gone and Debia Rupa replied that he had left for urination. At that stage the witness stated that all of them heard a hue and cry from where the boys were standing. Upon hearing the hue and cry the witness got down to find out as to what had happened and saw Dipin Maga rushing towards her and asked him as to what had happened. He stated that a fighting was going on. The witness went back to the vehicle and told Debia Rupa that the accused might be fighting with those boys and requested her to accompany to the spot. On reaching the place of occurrence the witness found that the deceased was lying on the pavement side of the bridge with injuries.
In cross, the PW-5 stated that it was dark and drizzling and there was no moonlight.
10. The initial deposition of PW-5 Nido Pumin was made on 06.08.2014. But on the prayer of the learned Public Prosecutor, the witness was declared to be a hostile witness. Thereafter, the learned Public Prosecutor had cross examined the PW-5.
11. PW-6 and 7 are seizure witnesses and apart from deposing as regards the Exhibits obtained to the seizure no further deposition is available.
12. PW-8 Inspector N. Riba, who was the Investigating Officer, in his deposition stated as to in what manner the investigation was done and the seizures that were made in course of the investigation.
Page No.# 11/24
13. PW-9 Pricilla Tayeng who was the Judicial Magistrate on duty while recording the statement of Nido Pumin under Section 164 Cr.P.C. deposed as to in what manner the statement was recorded.
14. One of the ladies Debia Rupa who was admittedly present at the place of occurrence as per the evidence of PW-2 as well as PW-5 had a statement recorded under Section 164 Cr.P.C. which is exhibited as Exhibit-14 and stated that the accused Biri Talin had assaulted the deceased with a local dao and although the witness tried to stop the accused, but in the meantime the accused had already committed the act. The said statement of Debia Rupa cannot be taken into consideration to arrive at any conclusion against the accused as Debia Rupa in the meantime had died and she was not brought as a witness so as to enable the accused to cross examine her.
15. The accused Biri Talin in his statement under Section 164 Cr.P.C. which is annexed as Exhibit-16 stated that on the given day he received a phone call from Debia Rupa and when he reached the house he did not find her. When he started to come back in his vehicle, on the way he met Debia Rupa on the road and while he was returning towards Itanagar he was stopped on the Doimukh bridge by one of the boys in the group. As he stopped the vehicle, the other boys fled from the place and when he got out from his car he found one of the boys injured and he did not recognize any of the boys and on being requested he took the injured person to a General Hospital.
16. The accused Biri Talin as DW-1 in his deposition stated that on the night Page No.# 12/24 of 17.09.2006 he was called over phone by his sister in law to pick her from Khola camp, Doimukh in his Wagon-R and in doing so, Ms. Nido Pumin also requested that she be dropped near her boy friend's place at Nirjuli. While driving, Debia Rupa had asked for his mobile phone to call someone as she had no balance and the accused did not know with whom the girls had talked. At the Doimukh bridge on being asked by the girls, he stopped the vehicle and both of them got down from the vehicle. From the headlight in the vehicle, the accused could see that there were 2/3 motorcycles standing nearby and Nido Pumin was talking to those boys. After a while the accused stated that he went out of the vehicle to attend a call of nature when he heard some noise from the place where the motorcycles were parked. Later Nido Pumin asked the accused to take the vehicle near the motorcycle where one person by name Subash Jeram was found in an injured condition. Thereafter the injured was taken to the General Hospital for treatment as the injuries were serious. As the injured was unable to move himself, the accused lifted him on his shoulder to put him on the back side of his vehicle. As the injured was bleeding, the accused made all attempts to find blood for giving it to the injured.
In cross examination, the accused DW-1 stated that he was never arrested by the police and that he was also given statement before the Magistrate.
17. In the aforesaid conspectus of facts as evolved from the evidence recorded above, it is noticed that there is a deposition of the accused as DW-1 wherein specific statement has been made that on reaching the place of occurrence the two girls got out of the vehicle and went near the other boys who were standing on the bridge and at that stage the accused went out for a call of nature and in doing so he heard a hue and cry and noticed that the Page No.# 13/24 deceased was lying in an injured condition.
18. It is also noticed that the aforesaid evidence rendered by the accused as DW-1 could not be demolished by the prosecution in cross examination, specifically the evidence rendered that after stopping the vehicle, he went out for a call of nature and at that time he heard some hue and cry and came back and saw the deceased lying in an injured condition. The aforesaid evidence of DW-1 also finds corroboration with the evidence of PW-5 Nido Pumin, who also stated in her deposition that after the vehicle was stopped, she came out and interacted with the informant Dipin Maga and when she returned back to the vehicle, she found that the accused was not present in the vehicle and was told that he had left for urination. The evidence of PW-5 that the accused DW-1 after stopping the vehicle had gone out for a call of nature/urination and at that stage, he heard hue and cry and found that the deceased was lying injured are in conformity with each other. We have also noticed that the statement of the accused under Section 164 CrPC does not in any manner shows that he had implicated himself in the offence so as to render it to be a confessional statement.
19. The aforesaid evidence that the accused after stopping of the vehicle had left for call of nature/urination and at that stage heard hue and cry and thereafter noticed that the deceased was lying in an injured condition can be examined vis-à-vis the purported eye witnesses accounts rendered by PW-1, PW-2 and PW-3.
Page No.# 14/24
20. PW-1 in his deposition stated that suddenly one white car came in the bridge and from the car the accused came out with a dao in his right hand and without saying anything, started assaulting the deceased Subash Jeram with the dao. PW-2 in his deposition had stated that the accused came out of the vehicle and enquired from the witness as to who was talking on the mobile phone and then took his motor cycle keys and forcibly pulled him inside the vehicle. Thereafter the accused made a call on the mobile phone upon which the mobile phone of the deceased Subash Jeram rang and thereafter the accused charged the deceased Subash Jeram saying that it was he who had made the phone call and thereafter started assaulting the deceased with a dao. PW-3, the third purported eye witness in his deposition stated that on the way in the Doimukh bridge, he saw a Wagon-R vehicle parked on the bridge, which belonged to the accused Biri Talin and on being asked to stop, the witness and others stopped their motor cycles. At that stage, the informant PW-2 Dipin Maga went towards the vehicle of the accused parked on the bridge and thereafter the accused Biri Talin took out a dao and told them that whosoever comes out will be cut with the dao and on being nervous, all of them started running in different directions. The witness then heard a mobile phone ringing and then saw that the accused was assaulting the deceased Subash Jeram with a dao.
21. What is noticeable is that all the three purported eye witnesses describe the same incident that had taken place. PW-1 states that when the vehicle of the accused stopped, the accused went out and without saying anything started assaulting the deceased with a dao. PW-2 describes the incident in a different manner by stating that after the vehicle had stopped, the accused came out, forcibly took his motor cycle's key, pulled him inside the vehicle and then asked Page No.# 15/24 him about some phone number and thereafter made a call on the phone number and as the phone which rang was in the hand of the deceased Subash Jeram, he went out and assaulted the deceased. The third purported eye witness states that the vehicle itself was parked on the bridge while the witnesses were moving in motor cycle and were asked to stop and when they stopped, the accused Biri Talin took out a dao and stated that whosoever comes out will be cut with the dao and thereafter one mobile phone rang and saw the accused assaulting the deceased with his dao.
22. Three material contradictions are noticeable. One witness says that the accused came in a vehicle, came out and started assaulting the deceased. Second one says that the vehicle came, accused behaved in a manner of forcibly taking away his motor cycle keys, pulled him inside the vehicle then called a phone number and assaulted the person who was holding the phone. The third witness says that the vehicle itself was parked on the bridge while the witnesses were moving in motorcycles and were asked to stop and when they stopped, the accused Biri Talin took out a dao and stated that whosoever comes out will be cut with the dao and thereafter one mobile phone rang and saw the accused assaulting the deceased with his dao.
23. If three persons moving together had seen the same incident, such material contradictions above, where one saying the vehicle came and stopped and the accused assaulted the deceased, the other saying that the vehicle stopped and the accused forcibly took the keys of the motorcycle and took him inside the vehicle and thereafter assaulted the deceased and the third one saying that the vehicle itself was parked on the bridge while the witnesses were Page No.# 16/24 moving in motorcycles and were asked to stop and when they stopped, the accused Biri Talin took out a dao and stated that whosoever comes out will be cut with the dao and thereafter one mobile phone rang and saw the accused assaulting the deceased with his dao, could not have taken place and this itself renders the eye witness accounts to be dis-believable.
24. We further notice that even the incidents prior to the occurrence as described by the three purported eye witnesses appears to be at a wide variance with each other. If three persons are moving together for a considerable period of time prior to the occurrence taking place, it is expected that for a normal person, all three persons describing the prior events to be inconformity with each other and the prior incidents cannot be at a wide variance with each other.
25. In State of Himachal Pradesh Vs. Lekh Raj and another reported in (2000) 1 SCC 247, in paragraph 7, it had been held that " material discrepancies are those which are not normal and not expected of a normal person ."
26. In the instant case, if three persons are moving together for a considerable period of time prior to the occurrence having taken place, as a normal person, it is expected that all the three persons in their deposition would describe the prior events in the same manner. On the contrary if the description of the prior events are at a wide variance with each other, although they were moving together for a considerable period prior to the occurrence, such wide variance would have to be accepted to be not by a normal person. From such Page No.# 17/24 point of view, the wide discrepancies in the description of the prior events by PW-1, PW-2 and PW-3 although they were moving together for a considerable period of time prior to the occurrence would have to be accepted to be a material discrepancy.
27. As regards the principle of law as to in what manner the statement of a witness has to be understood, we refer to two propositions laid down by the Supreme Court which is as follows:
(i). In paragraph 49 of its pronouncement in Shyamal Ghosh Vs. State of West Bengal, reported in (2012) 7 SCC 646, it has been held that the Court should examine the statement of a witness in its entirety and read the said statement along with the statement of the other witnesses in order to arrive at a rational conclusion and no statement of a witness can be read in part and/or in isolation. Paragraph 49 of Shyamal Ghosh (supra) is extracted as follows:
"49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion."
(ii). In paragraph 15 of its pronouncement in State of Uttar Pradesh Vs. Krishna Master and Others reported in (2010)12 SCC 324 it has been held that the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Paragraph 15 of Krishna Master (supra) is extracted as follows:
"15. Before appreciating evidence of the witnesses examined in the case it would be instructive to refer to the criteria for appreciation of oral Page No.# 18/24 evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth".
28. When we examine the evidence of PW-1, PW-2 and PW-3, the purported eye witnesses, in its entirety which comprises of such inconsistencies and material discrepancies as indicated above and read the statement in the evidence of the accused DW-1 in respect of as to under what circumstance the occurrence had taken place, which again has been corroborated by the evidence of PW-5, we are afraid that the purported eye witnesses account of PW-1, PW-2 and PW-3 would have to be discarded in favour of the account rendered by the accused DW-1 and PW-5 although PW-5 may have been declared to be hostile.
29. Mr. NNB Choudhury, learned Public Prosecutor for the State relies upon a pronouncement of the Supreme Court in Shyamal Ghosh (supra) wherein in paragraph 45.3 it had been provided that it is a settled principle of law that statement of a hostile witness can also be relied upon by the Court to the extent it supports the case of the prosecution. By relying on the said proposition of the Supreme Court, it is the submission of the learned Public Prosecutor that the statement of a hostile witness cannot be relied by the defence in their favour.
30. The provision of the Supreme Court in Shyamal Ghosh (supra) in paragraph 45.3 is extracted as below:
"45.3.....It is a settled principle of law that statement of a hostile witness can also be relied upon by the court to the extent it supports the case of Page No.# 19/24 the prosecution."
31. But whether the said proposition would also imply that it is only the prosecution who can rely upon the statement of a hostile witness, or the defence can also rely upon it, in the event, the evidence rendered by the hostile witness is corroborated by the defence witness, requires an examination.
32. In Keshoram Bora Vs. State of Assam reported in (1978) 2 SCC 407, in paragraph 8 the Supreme Court has held as extracted:
"8....Although this witness was declared hostile, this part of the statement made by the witness is amply corroborated by the testimony of an independent witness, namely, (PW 6) Ananta Kumar Bora who also says that the land belonged both to Kalinath and Kamal Singh."
33. On a reading of the propositions laid down by the Supreme Court in paragraph 8 of Keshoram Bora (supra) it has to be understood that even the statement made by a witness declared to be hostile can be relied upon if such evidence is corroborated by any other witness. Although in the said case at hand before the Supreme Court the corroboration was by an independent witness.
34. In Gura Singh Vs. State of Rajasthan reported in (2001) 2 SCC 205 in paragraph 11 it has been held as extracted:
"11. There appears to be a misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that Page No.# 20/24 merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh Vs. State of Haryana 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 the conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa 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."
35. From a reading of the proposition laid down in paragraph 11 of Guru Singh (supra) it flows that it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. The Supreme Court relied upon its earlier pronouncement in Bhagwan Singh Vs. State of Haryana reported in (1976) 1 Page No.# 21/24 SCC 389 wherein it was 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. By taking note of the said proposition it is provided that the evidence of the hostile witness remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witnesses. But it is further provided that merely because the permission was given to cross examine the hostile witness, the witness does not become unreliable only on his declaration as hostile. In a criminal trial, where the prosecution witness is cross examined and contradicted with the leave of the Court by a party calling him for evidence, cannot as a matter of general rule be treated as washed off the record altogether.
36. In other words, we have to understand that it is the proposition of law that even if the testimony of the hostile witness is contradicted on a cross examination by the party calling him for evidence, still such evidence is not washed of the records altogether and it remains open for the Court to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or he can still be believed.
37. As a corollary to the aforesaid proposition, if upon cross examination by the party calling such witness to give evidence the testimony rendered is not contradicted, we have to understand that such evidence which remains uncontradicted can be relied upon by either of the parties be it the prosecution or the defence.
Page No.# 22/24
38. Such proposition would be further fortified if the uncontradicted evidence of the hostile witness is corroborated by any other evidence of the defence.
39. In the instant case, the evidence rendered by PW-5 Nido Pumin that the accused had gone for urination and at that stage when he heard hue and cry he came back and saw the accused lying in an injured condition is corroborated by the evidence of the accused as DW-1, where he says that when he went to attend the call of nature, he heard a hue and cry and upon coming back saw the accused in an injured condition.
40. We further take note that the said piece of evidence rendered by the PW- 5, although declared hostile as well as of DW-1 have not been contradicted by the prosecution in cross examination and as such remains an uncontradicted piece of evidence.
41. The aforesaid requirement in the proposition of law of the party calling the witness to cross examine him upon being declared to be hostile also flows from the principle that in the absence of such requirement to contradict the hostile witness by means of cross examination, it would also give an unfettered power to the prosecution to scuttle any evidence that may be rendered by any witness to find out the truth in a given manner by merely taking recourse to have the witness declared hostile, if for any reason the evidence rendered by the witnesses goes against the scheme sought to be projected by the prosecution.
Page No.# 23/24
42. In this respect, we also take note of the principle of law that even the evidence of a witness declared hostile can be taken into account if such evidence is also corroborated by other witness.
43. Mr. NNB Choudhury, learned Public Prosecutor for the State also submits that the eye witness accounts of PW-1, PW-2 and PW-3 corroborates with each other and therefore, the said eye witness accounts cannot be discarded.
44. For the purpose, the learned Public Prosecutor for the State relies upon a pronouncement of the Supreme Court in Annareddy Sambashiva Reddy and Others Vs. State of Andhra Pradesh, reported in (2009) 12 SCC 546, wherein in paragraph 34, it had been held that " the golden principle to evaluate the evidence of an eye witness is not to weigh such testimony in golden scales but to view it from the cogent standards that lend assurance about its trustfulness."
45. We are in agreement with the aforesaid proposition relied upon by the learned Public Prosecutor. But in the instant case, we are neither required to weight the testimony of PW-1, PW-2 and PW-3 in a golden scale nor are we required to proceed in a manner of meticulous exuberating. What we have noticed is that there is a wide variance on the description of the prior events leading to the occurrence as well as the description of the occurrence by the three witnesses, when the three witnesses were moving together for a considerable period of time prior to the incident and to arrive at such conclusion neither any meticulous exuberating approach is required to be taken nor any weighing in a golden scale is required to be made.
Page No.# 24/24
46. In view of the conclusions arrived at, we are unable to accept that the prosecution had established their case beyond all reasonable doubt that the accused Biri Talin had committed the offence of causing death to the deceased Subash Jeram. Accordingly, the conviction of the accused Biri Talin under Sections 302/201 of the IPC and his sentencing for a rigorous imprisonment for life and to pay a fine of Rs. 5000/- and in default thereof to undergo a further rigorous imprisonment of six months for the offence under Section 302 IPC and the sentence of three years and a fine of Rs. 1000/- and in default of payment thereof, to undergo further simple imprisonment of one month for the offence under Section 201 IPC, which are to run concurrently as per the judgment dated 10.08.2018 of the learned Sessions Judge, Yupia, Papum Pare, Arunachal Pradesh in Sessions Case No. 180/2013 (YPA) stands set aside and the accused is set at liberty forthwith.
47. The criminal appeal stands allowed in the above terms.
JUDGE JUDGE Comparing Assistant