Calcutta High Court
Harka Bahadur Rai vs State Of West Bengal on 12 July, 2005
Equivalent citations: 2005(4)CHN77
JUDGMENT Arun Kumar Bhattacharya, J.
1. The present appeal is directed against the judgment and order of conviction and sentence passed by the ld. Additional Session Judge, Jalpaiguri in Sessions Case No. 57 of 1991 (Sessions Trial No. 11 of 1991) on 12.06.2003.
2. The prosecution case, in brief is that on 01.10.1988 at about 7,00 p.m. the defacto complainant's elder brother Bhakat Bahadur Nepal Chhetri on reaching her house with injury near his chest caused by kukri asked for a glass of water quickly saying that Harka Bahadur assaulted him with kukri, and then he fell down. When the complainant brought water he took the same slightly and thereafter died. On her cry, Naina Singh Biswakarma, Tek Bahadur Chhetri and other villagers came there. Later it transpired that while the victim Bhakt Bahadur Chhetri was returning from Deopara garden, Hakra Bahadur slashed him with a kurki. Hence, the accused was charged under Section 302 IPC.
3. The defence case, as suggested to PWs. and as contended by the accused during his examination under Section 313 Cr. PC is that the victim did not tell to P W 1 that he was assaulted by the accused. He has been falsely implicated in this case out of political rivalry in connivance with PWs. 1, 5 & 6.
4. 17 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence and after considering the facts, circumstances and materials on record, the ld. Court below found the accused guilty under Section 302 IPC., convicted him thereunder and sentenced him to suffer imprisonment for life and to pay fine of Rs. 1000/- i.d. to S.I. for two months.
5. Being aggrieved by, and dissatisfied with, the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the ld. Court below was justified in passing the above order of conviction and sentence.
7. Mr. Partha Sarathi Bhattacharya, ld. counsel for the appellant, advanced argument contending that the testimony of P.W. 1 that the victim informed her the name of his assailant is uncorroborated, on the basis of which the conviction of his client should not be sustained particularly when it is pregnant with lacunae. Mr. Dastoor, ld. counsel for the State, on the other hand, in his usual fairness submitted that there is no animus of P.W. 1 against the accused and so if the testimony of P.W. 1 is believed by the Court, there is no chance of escape from conviction.
8. To start with, any person who is acquainted with the handwriting, signature, mark etc. of the writer or in whose presence a document was written can prove the document. Here, though P.W.1 proved the FIR., the same was not marked exhibit, the reason for which is obscure.
9. The present case hangs upon oral dying declaration, said to have been made before P.W. 1, and as such P.W. 1 is the sole witness in this case, others being formal or post-occurrence witnesses.
10. P.Ws. 2 & 3 are witnesses to the seizure of a bicycle, one hawai chappal, controlled and blood-stained earth, while P.Ws. 9 & 10 are witnesses to the seizure (Ext.3) of ganjee, trouser etc. P.Ws. 11 & 12 were simply tendered for cross-examination. P.W. 16 on receipt of FIR started Banarhat P.S. Case No.1 dated 01.10.1988 under Section 302 IPC., recorded the formal FIR. (Ext.5) and endorsed the case to SI B. Saha (P.W.14) for investigation. P.W.14 is the first I.O. and P.W. 15 is a second IO who arrested the accused on 15.11.1990 and submitted chargesheet against the accused under Section 302 IPC. P.Ws. 4, 5, 7 & 8 on hearing a hue and cry and P.W.6 on being reported by P.W.7 and three others had been to the house of P.W.1 found the dead body of the victim with cut and bleeding injury on the right side of his neck and came to learn from P.W.1 that the victim informed her that he was assaulted by Harka Bahadur. There is no such evidence on the part of P.W.1 that she reproted as above to those witnesses, and accordingly the above evidence of P.Ws. 4 to 8 being hearsay can be excluded from consideration.
11. Now, conviction on dying declaration alone is legal if it is found true, voluntary, conscious and made with normal understanding and the maker was in fit physical condition to make the declaration. If it is free from any embellishment or distortion and wholly reliable it can form the basis of conviction in murder case even without any corroboration. To test the reliability of a dying declaration the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example whether there was sufficient light, whether the capacity of the declarant to remember facts stated had not been impaired at the time was making the statement by circumstances beyond his control either due to the nature of the injures or for any other cause and whether the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. So, dying declaration based on oral evidence requires further evidence to lend assurance to the matter.
12. It is the evidence of P.W. 1 that on 01.10.1988 at about 6.00 p.m. while she was working in the kitchen, she heard a cry for help. She came out and found her elder brother Bhakat Bahadur with bleeding injury on neck fell down on her courtyard. He asked for water and told that one Harka Bahadur assaulted him with a kukri and thereafter he died. P. W. 17 on holding P.M. examination on 01.10.1988 over the deadbody of the victim, brought and identified by P.W. 13, found one incised injury 15 c.m. x 8 c.m. x thoracic cavity deep over right side of neck just above right clavicle and on further dissection, extravasations of blood at the underlying tissues, haemothorax right side, right lung collapsed and opined that death was due to shock and haemorrhage following the said injuries which was ante-mortem and homicidal in nature. Injury No.1, he said, may be caused by sharp-cutting weapon and it might have been caused with the help of kukri which is generally used by Nepalis. Such injury may also be caused if anybody falls on any sharp-cutting weapon/ glass if placed on the pointed position, said he in cross-examination.
13. P.W. 1 is a rustic villager deposing after about 4 years 4 months. Power of recapitulation differs from man to man. So, the above inconsistency relating to the time at 6.00 p.m. which according to FIR is 7.00 p.m., may be ignored. But the rest portion of her evidence is quite inconsistent with the FIR in every step inasmuch as in the first place, according to the FIR she found bleeding injury near the chest and not neck as deposed, secondly as per FIR after asking for a glass of water quickly and informing that Harka Bahadur assaulted him with a kurki the victim fell down, whereas she deposed that after coming out of the kitchen she found the victim had fallen down, he asked for water and informed that one Hark Rai assaulted him with a kukri, thirdly according to the prosecution case, when she brought water, after drinking the same slightly he expired, but in evidence she stated that as soon as she brought water the victim died i.e. the victim had no chance of taking water.
14. The seized articles were not produced before the Court. However, the very fact of seizure of a bicycle leads to suggest that on way back from Deopara garden in a cycle the victim was assaulted. No sketch map of the P.O. was prepared by I.O. (P.W. 14) nor there is any evidence indicating the distance of the P.O. from the house of P.W. 1 so as to ascertain whether it was possible for the victim with such severe injury on neck to cross the distance and to tell the name of the assailant to P.W. 1. This is a major defect in the investigation.
15. Since the FIR is the earliest version of the prosecution, the time of 7.00 p.m. as mentioned therein may be taken into consideration. 7.00 p.m. in the month of October is quite dark. There is no evidence whether there was any streetlight at the P.O. If the victim was returning in a cycle while he was attacked and assaulted with a kukri from his right or backside, as the evidence of P.W.7 leads to indicate. It is doubtful how far he would be able to identify or recognize the assailant in the darkness.
16. Furthermore, when the medical evidence shows that the victim received so serious an injury, it should have been elicited from P.W. 17 whether it was possible for him to talk the dying declaration after crossing the distance from the P.O., but no question in this regard was put to him. Nevertheless, if the victim just after arrival at the courtyard of complainant fell down, as deposed by P.W.1, a reasonable doubt arises whether he had any capacity to talk and as such it is difficult to place much reliance upon the alleged oral dying declaration.
17. Moreover, in the FIR the name of the assailant as depicted is Hark Bahadur whereas P.W.1 stated the name of one Harke Rai. It is not clear whether Hark Bahadur and Hark Rai is the same and one person. P.W. 6 who is a member of Gram Panchayat of Shalpara -1, stated that there in no other Harka Bahadur Rai save and except the accused in that area, but he expressed his ignorance whether there are persons by name Hark Bahadur at Deopara Bustee and Upper Kalahari i.e. he is not in a position to specifically deny it. So, in such circumstances, when the father's name or residence of the assailant is absent, it will be unsafe to connect the present accused with the crime merely because he bears the same name.
18. P. W. 6 deposed that the relation between Hark Bahadur and the victim Bhakt Bahadur who were neighbours was not good and they used to quarrel. It is his further evidence that the accused is a supporter of GNLF whereas the victim was a supporter of CPI(M) and there was a constant clash between the two rival parties. Enmity between the victim and the accused is a double-edged weapon. It may provide incentive for the crime and it may also provide reasons for false implication of the accused. As such, merely because the accused and the victim used to quarrel or the victim belonged to rival political party, it may not be a ground for holding him guilty.
19. Last but not the least, it is the evidence of P.W. 14 that he unsuccessfully tried several times to arrest the accused who was ultimately arrested on 15.11.1990 as is evident from the evidence of P.W.15. Mere abscondance or disappearance of the accused by itself cannot form the basis of conviction. It is no evidence by itself and it may only lend weight to other evidence, as was held in the case of R.P. Tripathi v. State of U.P., reproted in AIR 1963 SC 74. Even innocent person may when suspected on grave crime be tempted to evade arrest, such being the instinct of self-preservation. When a finger of false accusation is raised, an innocent person may behave like a guilty one to avoid a false charge of harassment. So, in the absence of any other evidence, the said abscondance of the accused is not a ground for holding him guilty for commission of the alleged crime.
20. "A golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the Court should refrain from recording a finding of guilt of the accused. It is also an accepted rule that in case the Court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of that doubt. The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilized society. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person..." as was observed in the case of Kali Ram v. State of Himachal Pradesh, . In the light of the above discussion, when the present case involves a number of doubts as pointed out above, the accused is entitled to the benefit of doubt, and the prosecution cannot be held to have brought home the charge beyond all reasonable doubt. As such, the accused is found not guilty.
21. Accordingly, the appeal be allowed on contest. The order of conviction and sentence passed by the ld. Court below in Sessions Case No. 57/1991 (S.T. No. 11/91) on 12.06.2003 be set aside and the accused be acquitted of the charge under Section 302 IPC and he be set at liberty at once.
22. The accused be released forthwith from custody if not required in connection with any other case.
23. Alamats, if any, be destroyed after the period of appeal is over.
24. Let a copy of the this judgement along with the LCR be forwarded to the ld. Court below at once.
Debiprasad Sengupta, J.
25. I agree.