Orissa High Court
State Of Orissa vs Simanchal Gouda And Seven Ors. on 26 September, 1996
Equivalent citations: 1997CRILJ1816, 1996(II)OLR576
Author: A. Pasayat
Bench: S.N. Phukan, A. Pasayat
JUDGMENT A. Pasayat, J.
1. Judgment of the learned Second Additional Sessions Judge, Berhampur directing acquittal of eight respondents (hereinafter referred to as 'the accused' by name) is the subject-matter of challenge in this appeal by the State.
2. Accusations which led to trial of the accused essentially are as follows :
On 14-3-1982 accused Simanchal Gouda, Bhagaban Gouda, Bhima Gouda, Rama Gouda and Burunda Gouda want to the house of Kantaru Naik (hereinafter referred to as 'the deceased') of village Jalamenipalli and dragged him to village Dherendi. On the way they were assaulting the deceased by slaps, fist blows and kicks. After they reached village Dherendi, accused Gandu, Burunda and Jadu joined them, and assaults continued by all the night. Deceased was tied to a pole by means of a rope, and was asked whether he had received any training in witchcraft from Bhima Gouda (PW 10). When the deceased denied to have received any such training, they tock him to the thrashing floor of accused Jadu and assaulted him there. Again enquiry was made about the training. Being afraid of further assault, deceased implicated Bhima saying that he had received some training in witchcraft from PW 10. After this, accused Bhima Gouda, Rama Gouda and Bhagaban Gouda went to the house of Bhima Gouda (PW 10) and brought him to the thrashing floor forcibly. Thereafter Tabatia Gouda and Gandu Panda, PWs 2 and 3 respectively arrived at the thrashing floor and advised the accused persons to go to village square to settle the dispute. So the accused persons brought the deceased and PW 10 to the village square where a meeting was held. On hearing about such acts of assault on the deceased, his wife (PW 4) and daughter (PW 1) came to the spot but returned to their village, when it became dark. In the meeting, the accused persons made the deceased to write an undertaking to the effect that he will be responsible for any witchcraft practised in future in village Dherendi. Said undertaking is contained in Ext. 1. In the night the accused persons entered into the house of Bhima (PW 10) forcibly and tried to assault him, but PW 10 managed to escape and went away from his house through the back-door to village Bhismagiri. From there he tried to go to Pattapur Police Station on the next day, but could not do so as he missed the bus. He got the first-information-report (Ext. 11) written by a school student on 15-3-1982, and on the next day at about 9 p.m. handed over the same to Shri K. Bhima Rao, A.S.I. of Police of Pattapur Police Station (PW 13). On receiving said report. P.S. Case No. 21 of 1982 was registered, and investigation was undertaken. On the next day morning, the wife and the daughter of deceased came to village Dherendi alongwith four of their co-villagers, and carried away the deceased, who was dying on the verandah of one Gonia Naik to their own village. Rahasa Naikahi, wife of the deceased along with the deceased wanted to go to Pattapur Police Station to lodge the information, but they came back as there was none to help them. Rahasa got her husband admitted into Bhismagiri Hospital on 17-3-1982. As his condition became serious, his dying declaration was recorded on 19-3-1982 vide Ext. 7 by the attending doctor. Deceased breathed his last on 19-3-1982. After the investigation was over charge-sheet was submitted against the accused persons for commission of offences punishable under Sections 147, 342, 302, 452 read with Section 149 of the Indian Penal Code, 1860 (in short, 'IPC'). The - accused were committed to the Court of Session to face trial. They were charged for commission of offences punishable under Sections 147, 302 and 452 read with Section 149, IPC by the learned trial Judge.
3. The accused persons pleaded innocence and faced trial.
4. Thirteen witnesses were examined to further the prosecution case. Reliance was placed by the prosecution mainly on the evidence of PWs 1, 4, 8, 9 and 10, who claimed to have witnessed the occurrence. The version of the accused persons was that there was no such occurrence as alleged. Bhima Gouda (PW 10) is the arch enemy of the family of accused Jadu Gouda, and is a powerful sorcerer. The accused persons suspected that he had practised witchcraft on the wife of accused Simanchal Gouda. She was being treated by the deceased, who gave out that by observing some tantric rites he can detect the man who had practised witchcraft. Being apprehensive of exposure, PW 10 wanted to do away with the life of deceased, dragged him to a thrashing floor, and compelled him to give in written that there will be no more witchcraft in the village, and assaulted him when deceased breathed his last. PW 10 who was out to harass the accused persons falsely implicated them.
5. The learned trial Judge found that there was a gulf of difference so far as version given by each of the so-called eye-witnesses is concerned. They differed from each other in material particulars. He also found that the version as given by the so-called eye-witnesses was at great variance with the evidence of the doctor so far as location of injuries is concerned.
The unexplained delay in setting the law into motion was also highlighted by the learned trial Judge. He found the so-called dying declaration to be not acceptable. Evidence of PWs 1, 4, daughter and wife respectively of the deceased was scrutinised in depth as they were related to the deceased. The conduct of PWs 1 and 4 in not seeking help of others who were stated to be present to come to the rescue of the deceased, was found to be unusual. Presence of PWs 1 and 4 at the spot was disbelieved. So far as PW 9 is concerned, the learned trial Judge found it difficult to believe the version of the deceased having been dragged. Evidence of PW 10 was discarded as he was found to be a highly interested witness. He was the informant. His evidence in Court was at material variance with the version indicated by him in the first information report. His explanation regarding the delay in lodging the FIR was found to be unacceptable. In view of these infirmities the learned trial Judge directed acquittal.
6. In support of the appeal the learned counsel for State submitted that even if the evidence of eye-witnesses is held to be unacceptable, the learned trial Judge should not have directed acquittal as the dying declaration alone was sufficient to fasten guilt on the accused persons. It is submitted that mere delay in lodging the FIR and/or the witnesses being either related or being on inimical terms does not ispo facto render their evidence unacceptable. Even if medical evidence is at variance with ocular testimony latter has to prevail. The chain of circumstances clearly established guilt of the accused.
7. Learned counsel for the accused on the other hand submitted that the presumption of innocence of the accused has been reinforced in the judgment of acquittal which is in order. The evidence has been critically analysed, and the learned trial Judge has come to the inevitable conclusion about innocence of the accused.
8. Rival contentions need careful consideration. Merely because a witness is related to the deceased or an injured, his evidence does not per se become vitiated. Same is the case of a witness who is inimically disposed towards the accused. What is needed is the critical and detailed analysis of the evidence to find out its probative value credibility and whether it has a ring of truth. Relatives are in the normal pattern of human behaviour expected to bring accusations against the actual offender and not to shield him and falsely implicate an innocent person. In the case at hand, the learned trial Judge was conscious of the requirement of deeper scrutiny and has made an indepth analysis of the evidence to conclude about the inherent fallacies thereof.
9. Though as rightly submitted by the learned counsel for the State, first-information-report is not expected to be an encyclopaedia of the factual background, yet when the version given in it is substantially at variance what is deposed in Court, that becomes a relevant factor in adjudicating the guilt or otherwise of an accused the explanation for delay in submission of the first-information-report is to be considered, and the reasons indicated, are to be scrutinised in detail. It is normal human conduct that when a murder has taken place more particularly of a relative, law is to be set into motion immediately. If it is not done, a doubt arises about possibility of false implication and embellishment. That is why acceptability of the explanation becomes important. In the case at hand, reasons given for delayed submission of the FIR are dearly unacceptable, and the learned trial Judge has come to right conclusion about it being a suspicious circumstances. It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with undisputed facts the 'credit' of the witnesses their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (See State of U.P. v. Krishan Gopal and Anr. : AIR 1988 SC 2154).
10. The question whether chain of circumstances unerringly established the guilt of the accused needs careful consideration. The 'Panchsheel' of proof of a case based on circumstantial evidence which is usually called five golden principles have been stated by the apex Court in Shared v. State of Maharashtra : AIR 1984 SC 1622.. They read as follows:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from 'may be' established ;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty ;
(3) the circumstances should be of a conclusive nature end tendency;
(4) they should exclude every possible hypothesis except the one to be proved ; and (5) there must be a chain of evidence so complete as not to-leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in. all human probability the act must have been done by the accused.
It is the cardinal principle of criminal justice that fouler the crime, higher the proof required. A golden thread which runs through the web of administration of criminal justice is to the effect that if two views are possible on the evidence adduced, one pointing to the guilt of the accused and the other to his innocence, the latter is to be accepted. This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence. Baton Alderson stated the following to the jury in Reg v. Hedge ; (1838) 2 Law 227 :
"The mind was apt to take a plea sure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole, and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
This was referred to in Shankarlal v. State of Maharashtra : AIR 1981 SC 765 ; and in Jaharlal v. State of Orissa : AIR 1991 SC 1388. Unlike direct evidence, indirect circumstances which throw light may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.
11. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to rule out a reasonable likelihood of the innocence of the accused. Where the various links satisfactorily make out a case and the circumstances point to the accused as the probable assailant with reasonable definiteness and if proximity to the accused as regards time and situation and the accused offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence such absence of explanation or false explanation would itself be an additional link which completes the chain. But at the same time it has to be borne in mind that it does not mean by implication that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused, however, extravagant and fanciful it might be. In other words, when deciding the question of sufficiency, what the Court has to consider is the cumulative effect of all proved facts, each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive, and establish guilt of the accused, conviction would be justified even though it may be that any one or more of these facts by itself is not decisive.
12. Dying declaration if found acceptable alone can form the foundation for a conviction. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct, viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances or the transaction resulting in his death, the grounds of admission are ; firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might defeat the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth : a situation so solemn and so lawful is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice. These aspects have been eloquently stated by Eyre LCB in R. v. Wood Cock:(1789) 1 Leach 500. Shakespeare makes the wounded Helum finding himself disbelieved while announcing the intended treachery of the Dauphin Lewis exclaim:
"Have I met hideous death within may view, Retaining but a quantity of life, Which bleeds away, even as a form of wax, Resolveth from his figure, against the fire ?
What in the world should make me now deceive, Since I must lose the use of all deceit ?
Why should t then be false, since it is true That it must did here, live hence by truth ?"
(See King John, Act 5, Section 4) The principle on which dying declaration is admitted in evidence is Indicated in legal maxim "nemo moriturus praesumitur mentiri--a man will not meet his maker with a lie in his mouth.
13. The situation in which a man is on death bed is so solemn and seren when he is dying that the grave position in which he is placed, is the reason in law to accept in veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
Though a dying declaration is entitled to a great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. The apex Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Panthan v. State of Gujarat: (1992) (1) SVLR (Cri.) 133 :
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Mannu Raja v. State of M. P. : (1976) 2 SCR 764).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it without corroboration. (See State of Uttar Pradesh v. Ram Sagar Yadav : AIR 1985 SC 416 : and Ramavati Devi v. State of Bihar : AIR 1983 SC 164).
(iii) The Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, or prompting of imagination. The deceased had an opportunity to observe and identify the assailant and was in a fit state to make the declaration (See Ram Chandra Reddy v. Public Prosecutor : AIR 1976 SC 1994).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (See Rasheed Bag. v. State of Madhya Pradesh : 1994 (4) SCC 254).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Sing v. State of M. P. : AIR 1972 SC 1921).
(vi) A dying declaration which suffers front infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U. P.: 1981 SCC (Cri.) 531).
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurthi Laxmipati Naidu : AIR 1981 SC 617).
(viii) Equally, merely because it is a brief-statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth, (See Surjdeo Oza v. State of Bihar : AIR 1979 SC 1505).
(ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witness has said that the deceased was in a fit and conscious State to make the dying declaration, the medical opinion cannot prevail. (See Nanahau Ram and Anr. v. State : AIR 1988 SC 912).
(x) Where the prosecution version differs from version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U. P. v. Madan Mohan : AIR 1989 SC 1519).
(xi) Where there are more than one statement in the nature of dying declarations, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be truth, worthy and reliable, it has to be accepted. (See Mohan Lal v. State of Maharashtra : AIR 1982 SC 839).
14. In the light of the above principles, we will consider the acceptability of alleged dying declaration in the instant case. The dying declaration is only a piece of untested evidence and must like any other evidence satisfy the Court that what is stated therein is the unalloved truth and that it is absolutely safe to act upon it. If after careful scrutiny the Court is satisfied that it is true and false from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it basis of conviction, even if there is no corroboration. (See Gangotri Singh v. State of U.P.: JT 1992 (2) SC 417 ; Goverdhan Raoji v. State of Maharashtra : JT 1993 (5) SC 87 ; Mesala Ramkrushana v. State of M.P.: JT 1994 (3) SC 232 : and State of Rajasthan v. Kishore : JT 1996 (2) SC 595).
15. Ext. 7 is the alleged dying declaration. It contains reference to only one accused, i.e., Simanchal Gouda, and the question put to the deceased was who had assaulted him. There was not even a complete answer to this question. The question as to when he was assaulted was answered by saying that it was on a Sunday. In total five questions were put. The first three related to his name, father's name and his place of residence. There is nothing to indicate that the questions and/or answers had any link with the alleged incident. The learned trial Judge has rightly refused to place any reliance on the alleged dying declaration to fasten the guilt on the accused.
16. In our considered opinion, the trial Judge was justified in directing acquittal of the accused. There is no merit in this appeal which is accordingly dismissed.
S.N. Phukan, C.J.
I agree.