Gauhati High Court
Moni Das @ Monindra Das vs The State Of Assam on 15 March, 2019
Equivalent citations: AIRONLINE 2019 GAU 239, (2019) 7 GAU LR 698
Author: Ajit Borthakur
Bench: Manash Ranjan Pathak, Ajit Borthakur
Page No.# 1/13
GAHC010176462015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 45/2015
1:MONI DAS @ MONINDRA DAS
VERSUS
1:THE STATE OF ASSAM
2:SRI HIRENDRA DAS
S/O-LT. NEPUR DAS
R/O-HARITIKAR-II
P.S.-KATIGORAH
DIST.-CACHAR
ASSAM
Advocate for the Petitioner : AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
Page No.# 2/13 BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE AJIT BORTHAKUR For the appellant : Mr. Bhaskar Baruah, Amicus Curiae.
For the respondent No. 1 : Ms. Barnali Bhuyan, Additional Public Prosecutor, Assam.
For the respondent No. 2 : Did not contest.
Date of Hearing : 07-01-2019.
Date of Judgment : 15-03-2019.
JUDGMENT AND ORDER
(Ajit Borthakur, J)
Heard Mr. Bhaskar Baruah, learned Amicus Curie, appearing on behalf of the appellant herein and Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam for the State respondent.
2. This appeal from jail is directed against the judgment and order, dated 23.04.2015, passed by learned Additional Sessions Judge, Cachar at Silchar in Sessions Case No. 122/2013 whereby the appellant is convicted under Section 302 of the Indian Panel Code (in short, 'the IPC') and sentenced to suffer rigorous imprisonment (RI) for life with fine of Rs. 5,000/- (Rupees five thousand) only and in default to pay the same to suffer simple imprisonment (SI) for further 6 (six) months.
3. The appellant's case, in a nutshell, is that on 30.12.2010, the informant Hirendra Das, son of late Nepu Das, resident of Horitikar Part-II, under Katigorah Police Station, District Cachar, Assam lodged an FIR (Exhibit-2) before the Officer-in-Charge of Katigorah Police Station alleging, interalia, that on that day at about 4:30 p.m. at village Horitikar Part-II, the appellant wielded Page No.# 3/13 with a sharp knife ('Bhujali') caught hold of his niece Ranjita Das @ Pompy and dragged her to the vegetable garden of the local Masjid and stabbed her to death instantaneously on the spot.
4. Based on the above FIR, Katigorah Police Station Case No. 692/2010 under Section 302 of the IPC, corresponding to G.R. case No. 4616/2010 was registered and after completion of investigation, the police finding sufficient materials, submitted the charge-sheet vide No. 132/2011 dated 15.06.2011 (Exhibit-7) under Section 302 of the IPC against the accused- appellant.
5. The charge-sheeted offence being exclusively triable by the Court of Sessions, after observing necessary formalities under Section 209 of the Code of Criminal Procedure (in short, 'the CrPC'), the learned Chief Judicial Magistrate, Cachar at Silchar by its order, dated 11.07.2013, committed the said case to the Court of the learned Sessions Judge, Cachar at Silchar for trial. On receipt of the committal order, the said case was registered as Sessions Case No. 122/2013 and by order, dated 12.08.2013, learned Sessions Judge, Cachar, Silchar transferred the same to the Court of learned Additional Sessions Judge, Cachar, Silchar for disposal.
6. On hearing the learned counsels for both the parties, and consideration of the case record along with the case diary, having found prima facie incriminating materials under Section 302 of the IPC against the accused-appellant, the learned Trial Judge vide order, dated 12.09.2013, accordingly framed the charge, which was read over and explained to him to which he pleaded not guilty and claimed to be tried. In order to prove the charge, the prosecution examined as many as 10 (ten) witnesses and exhibited 7 (seven) number of documents and 9 (nine) number of material exhibits. The learned Trial Court also examined two witnesses as C.W.1 and C.W.2.
7. After closing the evidence of the prosecution side, the learned trial court recorded the statement of the accused-appellant under Section 313 of the CrPC. The appellant pleaded innocence and declined to examine witnesses in defence. Then, the learned trial court, after hearing the arguments of the learned counsels of both sides and on appreciation of the evidence on record, held the accused-appellant guilty of the charge and accordingly convicted and sentenced him as stated hereinabove.
8. We have heard the arguments advanced by the learned counsels of both sides and perused the case record.
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9. Mr. B. Baruah, learned Amicus Curiae appearing for the appellant, submitted that the learned trial Court held the appellant guilty of the charge of murder based on the evidence of purported eye witnesses P.W.3 Chanchu Rani Das, sister-in-law of the deceased and P.W.4, Abdul Waris @ Sona, an independent witness and neighbour of the deceased, overlooking their inability to specifically state the exact location of the place of occurrence and identify the weapon of offence respectively. Mr. Baruah further submitted that P.W.1, Hirendra Das, brother-in-law of the deceased, P.W.2, Lila Ram Das, father of the deceased respectively and P.W.5, Hazera Begum, Ward Member and neighbour of the deceased did not witness the occurrence and as such, whatever they stated was hearsay. Referring to the evidence of C.W.1, Sanjita Das @ Mona Das and C.W.2, Amit Das, sister and brother respectively of the deceased, Mr. Baruah submitted that their statements were not recorded under Section 161 of the CrPC and so, whatever they stated in Court was being stated for the first time, their evidence cannot be relied on. Mr. Baruah, learned Amicus Curiae, also submitted that the prosecution did not examine Manik Uddin despite being a material witness in the case. According to Mr. Baruah, the evidence of PWs 2, 3 & 4 is shaken by their material contradictions to the statements made under Section 161 of the CrPC as has been revealed in cross-examination of the investigating officer. Mr. Baruah, in this regard, relied upon a division bench decision of this Court rendered in Ganakanta Das -Vs- the State of Assam, reported in (1989) 2 GauLJ 320.
10. Per contra, Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam contended that before summoning C.W.1 and C.W.2, on the prayer of the learned Additional Public Prosecutor, the learned trial Court ascertained the need of their examination and vide order dated 09.09.2014 came to the conclusion that as C.W.2, Amit Das was a cited witness in the charge-sheet and C.W.1, Sanjita Das @ Mona Das was an eye witness of the occurrence, as such, they were summoned under Section 311 of the CrPC for examination, subject to cross-examination by the defence. Therefore, Ms. Bhuyan contended that evidence of those witnesses cannot be brushed aside. Ms. Bhuyan further contended that P.W.3 Chanchu Rani Das and P.W.4 Abdul Waris @ Sona were undisputedly eye witnesses of the occurrence, which took place in broad day light and therefore, on a fair and a balanced appreciation of their evidence along with the evidence of the remaining prosecution witnesses, it can safely and unerringly be inferred that no other, but the appellant only who stabbed to death of Ranjita Das @ Pompy beyond all reasonable doubt and so the contradictions are being insignificant, no interference in the impugned judgment and order Page No.# 5/13 may be called for.
11. The F.I.R., dated 30.12.2010, lodged by P.W. 1, Hirendra Das, vide Ext. 2 revealed that on that day at about 4:30 p.m., at village Horitikar Part-II under Katigorah Police Station, the appellant wielded with a sharp knife ('Bhujali') stabbed to death of the deceased Ranjita Das @ Pompy and as it appears from the post-mortem report vide Ext. 5, the deceased was aged about 16 years. The evidence of P.W.9, Dr. Gunajit Das, HOD, Department of Forensic Medicine, Silchar Medical College and Hospital (for short 'SMCH') at Silchar performed the post-mortem examination of the deceased, on the following day of the occurrence, that is, on 31.12.2010 and found the following injuries on her person;
"(i) Stab injury of size 2 x 1 x 1.5 cm at the front of the middle of right arm.
(ii) Stab injury at the deltoid region of left arm 2 x 1 x 1.5 cm.
(iii) Stab injury of size 3 x 1 cm going into the abdominal cavity at the middle of left hypochondrium.
(iv) Stab injury at the dorsal aspect middle part of the left forearm 3x1x1 cm.
(v) Stab injury of size 2 x 1 cm placed at the left scapular region entering the thoracic cavity.
(vi) Stab injury at the back of thoraco abdominal junction left side going into abdominal cavity 2 x 1 cm."
12. According to P.W.9, the autopsy surgeon, Ranjita died due to hemorrhagic shock following the above multiple stab injuries sustained by her, which were homicidal and ante-mortem in nature, caused by sharp pointed double edged weapon and further, approximate time since death was 16-24 hours. In cross-examination, the autopsy surgeon (P.W. 9) stated that he has been working for about 14 years, in the Department of Forensic Science, since 22.03.2000 and during his tenure of service, he had carried out more than 5000 post-mortem examinations. He held the opinion that all the injuries, the deceased sustained, were grievous and homicidal in nature. In Ramaphupala Reddy & Others -Vs- State of A.P., reported in (1970) 3 SCC 474, the Hon'ble Supreme Court held that when highly qualified medical expert, who had already conducted many post-mortem examinations, gives the post-mortem report in a particular case, prima facie, his opinion is entitled to great weight. Here is the case, where the autopsy surgeon acquired sufficiently long experience in post-mortem examination as he had done more than 5000 post- mortem examinations, therefore, his evidence carries much significance.
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13. On scrutiny of the undisputed findings of the autopsy surgeon (P.W.9) vide Ext. 5, the post- mortem report of the deceased and the inquest officer (P.W.9A) vide Ext. 1, the inquest report and further, the ocular testimony of P.W.3 and P.W. 4 clearly indicate that the cause of death of Ranjita Das @ Pompy was the multiple stab injuries caused by sharp weapon. The assailant caused the aforesaid injuries certainly with the intention of causing her death.
14. The next pertinent question is who murdered Ranjita Das @ Pompy? P.W.3 Chanchu Rani Das, sister-in-law of the deceased and who at the relevant time of the occurrence was at home sitting alongwith the deceased and Sanchita Das (C.W.1), had witnessed the occurrence. Her (P.W.3) evidence shows that while Ranjita @ Pompy was returning with their dried cloths from the vegetable garden of the nearby mosque, situated at a distance of about 30/35 cubits from their house, the appellant abruptly appeared at the place from the back side of their house and he dragged Ranjita towards the said vegetable garden of the mosque by pulling her hair. Hearing Ranjita's alarm, she (P.W.3) alongwith her sister-in-law Sanchita (C.W.1) stepped out and from a distance of about 6/7 cubits, saw the appellant inflicting dagger ('bhujali') stabs to Ranjita, whereupon they cried for help. Hearing their cry, the nearby people such as Suna (P.W.4), Hazera Begum (P.W.5) came to their help. As all of them raised alarm, the appellant chased them, but one Manik Uddin saved them. When injured Ranjita asked for water, one Mayarun Nessa of their village gave her water and then, she died on the spot. In cross-examination, she (P.W.3) reaffirmed her statement made in examination-in-chief deposing that she saw the appellant inflicting injury to Ranjita @ Pompy by 'bhujali'. Thus, her evidence clearly shows that she directly witnessed the appellant inflicting stab wounds to the deceased by a dagger ('bhujali') after dragging her to the vegetable garden of the nearby mosque, instantly causing her death on the spot.
15. P.W.4 Abdul Waris @ Suna, a neighbor, corroborated the evidence of P.W.3 deposing that hearing scream of women, he rushed to the place of occurrence from his vegetable garden, situated about 200 cubits therefrom and saw the appellant dragging of Ranjita by hair to the vegetable garden of the nearby mosque. He (P.W.4) further saw the appellant inflicting multiple stab wounds with a knife-like weapon to Ranjita. According to him, hearing the scream of the women, one Manik Uddin @ Manik Laskar came and alongwith him, he (P.W.4) rushed to the place of occurrence. Witnessing their approach, the appellant fled away towards the river Barak. They found Ranjita Das @ Pompy lying on the ground virtually in dying state. P.W. 5 Hazera Page No.# 7/13 Begum, wife of P.W. 4, who did not witness the actual occurrence, deposed to have come to know about the occurrence from her husband (P.W. 4), Manik Laskar and others to the effect that the appellant inflicted injuries to Pompy and thereafter, he fled away towards the river. She (P.W. 5), who reached the place of occurrence at a later point of time, noticed multiple injuries on the person of Pompy and after taking a chips of water offered by Mayarun, she succumbed to her injuries on the spot.
16. C.W. 1 Sanjita Das @ Mona Das, younger sister of the deceased Ranjita and a student of Class-V, was the other eye-witness to the occurrence. Corroborating the evidence of P.W.3, she (C.W.1), in unequivocal words stated that at the relevant time of the occurrence, while she and her sister-in-law Chanchala were talking by the side of their house, her elder sister Ranjita went to the vegetable garden of the nearby mosque to bring the washed off dried cloths. According to her (C.W.1), while Ranjita was returning with the dried cloths, the appellant caught hold of her and inflicted repeatedly dagger blows to her and witnessing the incident from a distance of about 20 cubits, they raised alarm and on hearing their alarm, the neighbouring people started to gather at the place and witnessing the people coming to the place, the appellant fled the scene. Thereafter, they rushed to the place of occurrence and found the deceased Ranjita succumbed to her injuries, after taking a chips of water offered by one Mayarun Nessa. In her (C.W.1) cross- examination, the defence failed to elicit any material contradictions to her evidence-in-chief.
17. Thus, on a close scrutiny of the eye witnesses to the occurrence namely, P.W.3 Chanchu Rani Das, P.W.4 Abdul Waris @ Suna and C.W.1 Sanjita Das @ Mona, it is crystal clear that the appellant wielded with a dagger-like sharp and pointed weapon dragged away un-armed Ranjita Das @ Pompy, a girl, aged about 16 years, near from her house to the nearby vegetable garden of the local mosque and caused to her instantaneous death by inflicting multiple stab wounds in day light.
18. The evidence of PWs 3, 4 & C.W.1 is corroborated by PWs 1, 2, 5, 6, 7, 8 and C.W.2 Amit Das, directly and circumstantially, in material particulars. The evidence of P.W. 1, Hirendra Das, uncle of the deceased and C.W.2 Amit Das, elder brother of the deceased, at the time of the occurrence, who were fishing in the river Barak at a distance of about 50 meters from the place of occurrence, hearing 'hulla', they were returning home and on their so way back, they found the dead body of Ranjita lying in the vegetable garden of the local mosque. They noticed cut wounds Page No.# 8/13 on the dead body. They also noticed the family members namely, wife of Chanchu (P.W.3) and Mona (C.W.1) at the place and they were reported that while Ranjita was returning home with dried cloths, the appellant dragged her to the vegetable garden of the local mosque and stabbed her with a dagger to death. From their cross-examination, it appears that they did not witness the actual incident of murder of Ranjita, but reached the place of occurrence immediately after the incident. Their evidence further reveals that one Manik Uddin, who reportedly saw the occurrence, informed the police over phone and thereupon, the police arrived and prepared the inquest report vide Ext.1. Thereafter, P.W.1 filed a written ejahar vide Ext.2 in the night. The police seized some wearing cloths and other materials of the deceased by Exts. 3 & 4, the seizure lists. It further reveals that in that afternoon, Bhanu Das, elder sister of the deceased Ranjita had a quarrel with Subodh Das, cousin of the appellant, on the bank of river Barak and both parties went to Katigorah Police Station for lodging FIR against each other. According to them, when both parties including the father of Ranjita were at the police station, Ranjita was murdered. P.W.2, Lila Ram Das, father of the deceased, did not witness the occurrence as at the relevant time, he was at Katigorah Police Station in connection with the incident of quarrel, aforestated by P.W.1, corroborated the evidence of P.W.1 deposing that on receipt of the information about the occurrence at about 4:45 PM, over phone, he accompanied the police to the place of occurrence and found his daughter Ranjita Das @ Pompy lying dead in the vegetable garden of the mosque, bearing multiple wounds. Likewise, P.W.5 Hazera Begum, Ward Member of Horitikar Part-II, P.W.6 Khalilur Rahman Borbhuiyan, P.W.7 Fakrul Islam Choudhury and P.W.8 Namor Ali did not witness the actual occurrence, but having learned about the incident, rushed to the place of occurrence and found Ranjita lying dead in the vegetable garden of the local mosque bearing multiple injuries. Thus, we find that although PWs 1, 2, 5, 6, 7, 8 & CW-2 did not witness the actual occurrence, but they arrived at the place of occurrence soon after the incident was over and found Ranjita Das @ Pompy lying dead in the vegetable garden of the local mosque bearing multiple injuries. The evidence of C.W.2 that he saw the appellant running towards the river Barak, after commission of the crime cannot be disbelieved in view of the overwhelming direct evidence of eye witnesses such as, PWs 3, 4 and C.W.1 to the occurrence, which took place in the afternoon of the day, that is, in day light, implicating only the appellant.
19. In the instant case, the prosecution has not examined witnesses such as, Manik Uddin, who allegedly informed the police about the occurrence, Sanchita, who witnessed the occurrence Page No.# 9/13 and Mayarun Nessa, who offered water to the deceased to drink in her injured condition and the investigating officer allegedly did not record the statements of PWs 6 & 7 as well as CWs 1 & 2. Here it needs to be pertinently referred to the Hon'ble Supreme Court's judgment in Hukam Singh
-Vs- State of Rajasthan, reported in (2000) 7 SCC 490, wherein, it was held that if there are too many witnesses on the same point, the public prosecutor would be at liberty to choose some among them to save the court's time. In Ram Sanjiwan Singh -Vs- State of Bihar, reported in (1996) 8 SCC 552, the Hon'ble Apex Court held that the prosecution is not bound to produce each and every witness of the occurrence, irrespective of the consideration whether such witness is essential to the unfolding of the narrative, on which the prosecution case is based. Likewise, in Darya Singh -Vs- State of Punjab, reported in AIR 1965 SC 328, the Hon'ble Apex Court also held that normally all eye witnesses are to be examined by the prosecution. But prosecution can select witnesses and examine them and no adverse interference can be drawn when such selection is fairly made and there is no withholding of inconvenient witnesses from the witness box.
20. On perusal of the charge-sheet vide Ext.7, it appears that there are 16 cited witnesses, out of which, 14 witnesses were examined by the prosecution and 2 additional witnesses as Court witness, who were felt to be either direct or circumstantial witness to the occurrence. On the other hand, the non recording of the statements of the PWs 6 & 7 as well as CWs 1 & 2 does not appear to be fatal as it is not incumbent on the part of the investigating officer to record the statements of witnesses, because statements made by the witnesses to the police officer during investigation may be reduced to writing if such necessity is felt by him even though, in appropriate cases, such discretion of the investigating officer is not unfettered. In the instant case, the investigating officer (P.W.9A) appears to have recorded the statements of the PWs, who are really essential to prove the prosecution case. Therefore, in our considered opinion, the aforesaid purported omissions do not persuade us to draw an adverse inference against the prosecution case or the probative value of the evidence tendered by the prosecution witnesses, when material witnesses were examined.
21. It is noticed that the information about the occurrence was received over phone by the police of Katigorah Police Station from P.W.7 Fakrul Islam, instead of one Manik Uddin, who was not examined in the case, as stated by P.W.1 Hirendra Das, on 30.12.2010 at about 4:48 PM, as it appears from the evidence of said witness Shankar Lal Purkayastha, SI (Rtd.) of police, which was recorded in the general diary vide Ext.6, where Ext.6(1) is the relevant entry No.871. The Page No.# 10/13 aforesaid contradiction is not material in view of abundance of incriminating evidence tendered by the prosecution witnesses against the appellant and when murder of Ranjita Das @ Pompy, aged about 16 years, had taken place in broad day light near her own residence.
22. It is further noticed that the weapon of offence used by the accused/ appellant was not recovered by the investigating officer, but neither the defence has elicited any explanation in cross-examination for his inability to recover the same nor the prosecution has advanced any explanation in this regard. Having considered the eye witnesses' account of the incident plus the findings of the autopsy surgeon P.W.9 on the corpse of the deceased and also the contents of the inquest report (Ext.1) aforementioned, we are of the view that non-recovery of the weapon of offence used by the accused/appellant in the commission of the offence of murder of Ranjita Das @ Pompy, no way stands in the prosecution case.
23. So far the contradictions in evidence are concerned, the defence has confronted the P.W.9A, SI (Retd.) Sankar Lal Purkayashta, the investigating officer as herein below extracted:-
"I examined Hirendra Das (P.W.1). This witness did not state to me that he came to know the occurrence from Mona and Chanchu. This witness also did not state to me that Mona and Chanchu saw the incident first from in front of their house and thereafter out of fear they fled away inside the house and saw the incident from window. This witness further did not state to me that Manik Uddin seeing the occurrence from a distance of about 20/25 cubits.
There is no entry in the GDE that accused Moni and Hirendra (witness) were present at the P.S. at 2.30/3.00 PM on 30/12/10.
I examined the witness Lila Ram Das (PW-2). This witness did not state to me that he saw multiple wounds upon the body of his daughter. The witness also did not state to me that he found his daughter Sanchita @ Mona and Chanchala Das at the P.O. I examined the witness Chanchu Rani Das (PW-3). This witness did not state to me specifically that they saw accused Moni to inflict injuries to his sister in law by a bhujali, nor she told me that hearing their scream, one Manik Uddin came there and saved them. This witness also did not state to me that his uncle in law Hirendra Das came to the P.O. This witness is not a seizure witness.
I also examined Abdul Waris @ Suna. This witness did not state to me that he saw accused Moni dragging pompy by pulling her hair, nor he told me about Manik Uddin Page No.# 11/13 coming there or about Chanchala and younger daughter of Leela were present nearby the P.O. This witness also did not state to me about informing Amit with Leela's hand set (mobile)."
24. In the case of Ganakanta Das (supra), a division bench of this Court observed as hereinbelow:-
"4. Reading Section 162, CrPC, 1973 and Section 145 of the Evidence Act it is clear that a witness can be confronted with his earlier statement made to the investigating officer for bringing out contradictions. A Division Bench of this Court had occasion to consider this matter in the State v. Md. Misir Ali, AIR 1963 Assam 151, and the procedure for bringing out the contradiction is quoted below (Para "... .If it is intended by an accused to contradict the evidence given by a prosecution witness at the trial, with a statement made by him before the police during the investigation, the correct thing to do is to draw the attention of the witness to that part of the contradictory statement, which he made before the police, and question him whether he did in fact make that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction if, on the other hand, the witness denies having made such a statement before the police, the particular portion of the statement recorded under Section 162, Criminal Procedure Code should be provisionally marked for identification, and when the investigating officer who had actually recorded the statement in question, comes into the witness box, he should be questioned as to whether that particular statement had been made to him during the investigation, by the particular witness, and obviously after refreshing his memory from the Police Case Diary the investigating officer would make his answer in the affirmative. The answer of the investigating officer would prove the statement which is then exhibited in the case and will go into evidence, and may, thereafter, be relied on by the accused as a contradiction. This is the only correct procedure to be followed, which would be in conformity with Section 145 of the Evidence Act.")
5. So the ratio deducible from the above decision for probing a contradiction is that if a witness for the prosecution admits his previous statement before police such admission can be relied on by the accused as establishing the contradiction. If however, the witness denies having made such a statement before police when the investigating officer comes to the witness box he should be questioned as to whether that particular statement had been made to him during investigation by the said witness and obviously the investigating officer after refreshing his memory from the case diary would answer in the affirmative.
Page No.# 12/13 Such answer of the investigating officer would prove the contradiction. Though Division Bench has laid down that the portion of the statement has to be exhibited, in my opinion, this is only a procedural part. More particularly, as making an exhibit is a ministerial function and not a judicial function. In the aforesaid para the Division Bench did not lay down that non-marking of the portion as exhibit would nullify the contradiction.
6. In the State of Assam the above procedure if followed all along except the fact that portion in the case diary is not exhibited. According to present procedure as the case diary is with the court, court can always verify whether such a contradiction appears in the case diary and in fact it is the bounden duty of the court to examine the case diary in a criminal case.
7. In our country most of the litigants are poor, ignorant and illiterate and they entrust the entire case to their counsel. It will be against the interest of justice if such a contradiction is not taken into consideration by the Court merely because the Court failed to mark the portion of the contradiction in the case diary as exhibit. It is made clear that marking of the said portion as exhibit as stated earlier is not necessary for the purpose of considering by the Court the evidentiary value of any contradiction brought out by putting question to the witness and also to the investigating officer. I would go to the extent of saying that even if a counsel fails to put the question to the investigating officer to bring out the contradiction due to inadvertence or otherwise Court can definitely look into the case diary for this purpose and if necessary recall the investigating officer.
8. Courts in India are to do substantial justice to parties and the judiciary is respected not on account of deciding cases on technical grounds but because it is capable of doing justice on merits of the case. It will be a sad day if an innocent person is convicted by refusing to consider contradictions of witnesses for the prosecution in their statements before the investigating officer and in the witness box on the ground that such contradictions appearing in the case diary were not marked as exhibits."
25. We have considered the statements of the PWs aforementioned recorded under Section 161 of the CrPC and the contradictions so elicited by the defence as extracted above. A perusal of the evidence of PWs 1 & 2 reveals that they categorically stated to have not seen the actual occurrence, but the immediate aftermath of the occurrence and as such, the contradictions so elicited appear to be not significant in the case. On further perusal of the evidence of P.W.3, as a whole and her statement under Section 161 of the CrPC, it appears that the suggestion which was made by the defence to her was not correct as there was specific mention of use of 'bhujali' by the appellant while inflicting wounds to the deceased, in her statement under Section 161 of Page No.# 13/13 the CrPC as well as in her evidence. We have also perused the purported contradictions made by P.W.4 between his statement under Section 161 of the CrPC and his evidence. It is found that even if his statement to the effect inter-alia that he did not witness the appellant dragging Pompy by pulling her hair is taken into consideration, it is also not material in view of his undisputed evidence that he saw the appellant from a distance of about 20/25 cubits inflicting repeated blows to the deceased Pompy with a knife-like substance. Therefore, appreciating their evidence, as a whole and other attending facts and circumstances, delineated through the evidence tendered by the other prosecution witnesses, we hold the view that those purported contradictions were, in fact, misdirected and as such, not at all significant in the instant case.
26. For the reasons, set forth above, we have no hesitation to hold that the cause of death of Ranjita Das @ Pompy was certainly the consequence of 'culpable homicide', defined in Section 299, which amounted to 'murder', defined in Section 300 and punishable under Section 302 of the IPC beyond all reasonable doubt.
27. Therefore, we see no reason to interfere in the impugned judgment and order dated 23.04.2015, passed by learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No. 122/2013 and the same stands affirmed.
28. Accordingly, this appeal, being devoid of merit stands dismissed.
29. We appreciate the service rendered by both the learned Amicus Curiae, Mr. Bhaskar Baruah, as well as Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam. The Legal services Committee of this High Court shall pay a sum of Rs. 7,500/- to Mr. Bhaskar Baruah, learned Amicus Curiae towards his remuneration.
30. Return the records of the trial Court along with a copy of this judgment and order.
JUDGE JUDGE Comparing Assistant