Tripura High Court
Sri Biswajit Paul Alias Bishu vs The State Of Tripura on 11 October, 2017
Bench: T. Vaiphei, S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
Crl. App.(J) No.23/2013
Sri Biswajit Paul alias Bishu,
S/o Shri Mihir Ranjan Paul,
of Ujan Abhoynagar,
P.S. - East Agartala,
Dist. - West Tripura.
..... Appellant.
-: Versus :-
The State of Tripura.
..... Respondent.
_B_ E_F_O_R_E_ HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI THE HON'BLE MR. JUSTICE S. TALAPATRA Counsel for the appellant : Mr. Ratan Datta, Advocate, Mr. A Acharji, Advocate.
Counsel for the respondent : Mr. R C Debnath, Addl. P. P.
Date of hearing : 13-9-2017
Date of Judgment : 11-10-2017
JUDGMENT & ORDER
[T. Vaiphei, C.J.]
This criminal appeal is directed against the judgment dated 25-9-2012 passed by the learned Additional Sessions Judge, Court No.5, West Tripura, Agartala in S.T. No.123 of 2011 convicting the appellant U/s 498-A/302 IPC and sentencing him to undergo RI for life with a fine of ₹5,000/- for commission of the offence punishable U/s 302 IPC and to further undergo RI for three years with fine of ₹1,000/- for commission of the offence punishable U/s 498-A IPC; both the sentences are directed to run concurrently.
2. The case of the prosecution is that on 11-8-2010 at about 1205 hours, one Ajit Paul lodged a written ejahar with the Officer-in-Charge of Women Police Station, Agartala alleging, inter alia, that the appellant was married to the deceased (Smt. Namita Paul) about two and half years before the lodging of Crl. A(J) No.23/2013 Page 1 of 16 the FIR, but some days after their marriage, the deceased was subjected to torture at her matrimonial home to demand dowry. In the meantime, a daughter was born to them. On 7-8-2010 at about 8.30/9.00 PM, both the appellant and his father (the co-accused, who was acquitted for lack of evidence) on intoxicated condition poured kerosene oil on her and set her ablaze. On hearing her shrieking voice, people of her locality rushed to her and took her to GPB Hospital, Agartala. The information was conveyed to the informant's side on the following day at about 12 PM. One Suchitra Paul, the niece of the informant was at the house of the appellant on that night and was a witness to the occurrence. In a confused state of mind, he lodged an oral complaint on 11-8-2010 at Agartala Police Station, while the appellant was absconding. On the basis of this ejahar, the police swung into investigation after registering a regular case being Agt. Women PS No. 84/10 U/s 498- A/307/326/34 IPC. The deceased in the meantime succumbed to her burn injuries on 22-8-2010 whereafter Section 302 IPC was added to the charge.
3. At the conclusion of the investigation, the police charge-sheeted the appellant and his father (co-accused) to face the trial for commission of the offences punishable U/s 498-A/307/326/34/302 IPC. On commitment, the learned Sessions Judge, after hearing the parties on the charge, framed the charge against the appellant and the co-accused U/s 498-A/302 read with Section 34 IPC, to which both of them pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined as many as fifteen witnesses and exhibited fourteen documents and material objects to substantiate the charge against the appellant and the co-accused. After examination of the prosecution witnesses, the appellant and the co-accused were examined U/s 313 CrPC. They adduced the evidence of the Medical Officer, who examined and treated the deceased at GBP Hospital, Agartala as DW-1. The learned Additional Sessions Judge, after the trial was concluded, passed the impugned judgment convicting the appellant U/s 498-A/302 IPC and acquitting his father, the co-accused.
Crl. A(J) No.23/2013 Page 2 of 16
4. For convicting the appellant, the learned Additional Sessions Judge basically relied on the dying declarations (DDs) of the deceased made to the IO of the case (PW-15) on 11-8-2010 and the one made before the Executive Magistrate (PW-13) on 12-8-2010 i.e. Exbt.10, Exbt. 10/1, Exbt.11 and Exbt. 11/1 respectively and the statement of Ms. Suchitra Paul (PW-3), who is the niece of the informant and was about 8 years old at the time of taking her evidence. Assailing the impugned judgment, Mr. R. Dutta, the learned counsel for the appellant, has pointed out a number of defects in the DDs, which raised serious doubts on the genuineness thereof. He also submits that PW-3 is evidently a tutored witness and her presence at the PO at the time of incident is highly doubtful. For all these reasons, contends the learned counsel, the impugned judgment cannot be sustained in law and is liable to be set aside. Strong reliance is placed by him on the following decisions to fortify his various submissions: Shahid Khan v. State of Rajasthan, AIR 2016 SC 1178; Bhagwan Singh and others v. State of MP, AIR 2003 SC 1088; K. Venkateshwarlu v. State of Andhra Pradesh, 2012 Cri LJ 4388; Patiram v. State of Maharashtra, 2003 Cri LJ 4718; Babul Ghosh v. State of Tripura, (2015) 1 TLR 212 and Sujit Biswas v. State of Assam, 2013 Cril LJ 3140.
5. Per contra, Mr. R.C. Debnath, the learned Additional Public Prosecutor, supports the impugned judgment and submits that no interference is called for therein which is based on solid evidence. According to the learned Additional Public Prosecutor, the acceptability and admissibility of the two DDs has been clinchingly proved by the prosecution, and the trial court is well-justified in relying on such evidence to convict the appellant. It is also the contention of the learned Additional Public Prosecutor that the statement of PW-3, the sole eyewitness, has corroborated the two DDs in material particulars, and there is, as such, no reason to doubt the version of the prosecution that it was none but the appellant who set on fire the deceased for demand of dowry. He, therefore, strenuously submits that the appeal has no merit and is liable to be dismissed. He takes us to the following Crl. A(J) No.23/2013 Page 3 of 16 decisions to buttress his contentions: Mukeshbhai Gopalkhai Barot v. State of Gujarat, AIR 2010 SC 3692; State of HP v. Shree Kant Shekari, (2004) 8 SCC 153; Jakki alias Selvaraj and anr v. State, AIR 2007 SCW 1327; State of Rajasthan v. Kishore, AIR 1996 SC 3035; State of Punjab v. Hakam Singh, 2005 Cri LJ 4111 and Om Prakash v. State of Punjab, 1992 Cri LJ 3935.
6. On perusing the impugned judgment and the evidence on record and after giving our thoughtful consideration to the submissions of the learned counsel for the rival parties, the first point for consideration is the admissibility and acceptability of the two DDs, particularly, the DD made by the deceased before the Executive Magistrate for proving the case of the prosecution. The legal position regarding the admissibility of a DD is now well settled by the Apex Court in a long line of decisions. If any authority is required, we may refer to the recent decision of the Apex Court in Mukesh v. State of Delhi, (2017) 6 SCC 1 wherein the legal position has been reiterated:
"176. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Govt. (NCT of Delhi)72, taking into consideration the earlier judgment of this Court in Paniben v. State of Gujarat73 and another judgment of this Court in Panneerselvam v. State of T.N.74, has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration: [Atbir case (supra)] '22.(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. 72 (2010) 9 SCC 1 73 (1992) 2 SCC 474 74 (2008) 17 SCC 190 Crl. A(J) No.23/2013 Page 4 of 16
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.
(iv) 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.
(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free 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 the basis of conviction, even if there is no corroboration.'
177. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the Crl. A(J) No.23/2013 Page 5 of 16 contents of the dying declarations in the light of the various surrounding facts and circumstances."
(Underlined for emphasis)
7. Keeping in mind the above legal principles, we may now proceed to examine the admissibility of the two DDs. The first DD was made to the IO of the case, who was examined as PW-15. This DD is in the form of the statement of the deceased recorded U/s 161 CrPC allegedly recorded on 11-8-2010. It may be noted that the statement of injured recorded under Section 161 CrPC by the IO becomes a statement relating to the cause of death of that man if he/she subsequently dies. Section 162(2), CrPC in express terms excludes from its purview statements falling under Section 32(1) of the Evidence Act. PW-15 testified that on 11-8-2010 (time not mentioned), she first examined the informant (PW-1) in the Police Station and thereafter proceeded to the GBP Hospital where the deceased was admitted and examined her in the presence of two other witnesses, namely, Kashinath Pal (PW-10) and Smt. Dipa Pal (PW-
12). The said statement is marked as Ext.11. As per Ext.11, the deceased stated that her husband came home after drinking wine with ₹100/- she had given earlier and wanted ₹200/- more from her and that when she refused to give the same, he started scolding her and declared that he would not lead domestic life with her anymore. She further stated that she along with her child and PW-3 (who had come on a visit) proceeded towards the gate, but the appellant asked her to come to the room, which she, out of fear, obliged. Her child was at that time crying. At that time, her father-in-law (co-accused) came out of his room and took her child and her niece Suchitra (PW-3) to his room. According to the deceased, after sometime, the appellant dragged her to the room from near the gate when electricity was shut down whereupon her husband poured oil from hurricane (lantern) over her body and made her sit on the sofa while setting her on fire by using match-box. She further stated that she then came out of the room with a scream of pain and on hearing that, the people of the locality rushed to her and put down the fire, but she could not say what happened thereafter.
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8. PW-8 is the Medical Officer, who, along with one Dr. Jayanta Sankar Chakraborty, had conducted the post mortem examination of the deceased. He deposed that a total of 85% of the surface area of the body of the deceased was involved in the burn injuries. The question is whether the injured suffering from burn injury to the extent of 85% would be in a position to make such a statement. Not a single witness came forward to corroborate the statement of PW-15 that she recorded the statement of the deceased at GBP Hospital on 11- 8-2010. Moreover, which is more important, PW-15 admitted in her cross- examination that she did not take the permission of the Hospital Authority for examination of the deceased; that as per the Bed Head Ticket of the Hospital, on 12-8-2010, the Doctor opined that the deceased was not in a position to speak and that she did not collect any certificate from the doctor that the deceased was in a fit condition to give statement to her. This disclosure is significant when the deceased was found to be suffering from 85% burn injuries. That apart, in the bed head tickets dated 9-8-2010 vide Ext. A-2 series, the doctor remarked that the general condition of the deceased was very poor; that the deceased was having incoherent speech, and was not in a position to give dying declaration as her mental status and physical condition did not permit to do so. The same remarks were entered in the bed head ticket for the entry dated 10-8-2010 and 12-8-2010. The Medical Officer who received the deceased on 7-8-2010 at GBP Hospital and who was in the Department of Surgery on that day was examined as DW-1. In his evidence, he testified that on receiving the requisition for recording the DD of the deceased, he examined the deceased in the Hospital at 3.45 PM on 9-8-2010 and found the general condition of the deceased to be very poor and also found her having incoherent speech and in no position to give DD as her mental status and physical condition did not permit her to do so. He went on to state that he accordingly recorded his aforesaid findings in the prescribed form of doctor order. He identified the Bed Head Tickets and doctor orders, which he identified as Annexure-A-2 series (6 sheets) and accordingly informed the I/C Women PS, Agartala. He further testified that the deceased was admitted on 7- 8-2010 and succumbed to her burn injuries on 22-8-2010; that they had Crl. A(J) No.23/2013 Page 7 of 16 noted the day to day general condition of the deceased in the Bed Head Tickets and since 8-8-2010 to 9-8-2010, her general condition was very poor and from 10-8-2010 to 22-8-2010, her conditions were recorded very poor; that finally, on 22-8-2010 at 3.20 PM, she was declared dead; that the relatives of the victim were informed from time to time regarding her condition and that on 7- 8-2010, when she was admitted, she was conscious but she did not say the cause of her burn injury. In cross, he admitted that there was no note in the Bed Head Tickets of 7-8-2010 and 8-8-2010 and the doctors orders that the deceased was not in a position to give her statement except to note that her general condition was very poor and that he could not say if the deceased ever made any statement to anybody after her admission in the ward on 7-8-2010 to 9-8-2010.
9. On critical examination of the aforesaid testimony of DW-1, it is quite evident that the cross-examination of this witness did not bring out anything to discredit his testimony. On the contrary, we are of the view that DW-1 appears to be a truthful witness and there is nothing in his cross-examination to show that he is a biased witness and has no concern for the truth. Therefore, we have no hesitation to hold that the DD purportedly recorded by PW-15 is full of doubts and cannot be admissible in evidence. So is the DD recorded by the Executive Magistrate, who was examined as PW-13, who testified that when he recorded the statement of the deceased, one Bapi Das and Ajit Pal (PW-9) were present there and they also signed on the DD (Ext.-
10) after he recorded the same. A perusal of Ext.-10 will show that the statement was not recorded in the words of the deceased but in the third person. The DD mentioned that the deceased verbally declared in the presence of the said Bapi Das and PW-9 that on 8-8-2010 at about 7-30 PM, her husband quarreled with her throughout the day and also physically assaulted her and finally poured kerosene oil on her body from the kerosene lantern at the time mentioned, and as a result, almost 95% of the body got burnt. It was further mentioned therein that she got married two and half years back and had nine months old girl. The remark made by PW-13 that as per declaration, Crl. A(J) No.23/2013 Page 8 of 16 it was learnt that the deceased used to torture regularly and drink frequently, appears to be his conclusion without any basis. In the first place, the statement of PW-13 is not corroborated by PW-9, who in his deposition did not utter a single word about the recording of such DD by PW-13. The second witness who purportedly witnessed the recording of the DD was not examined at all.
10. It may also be noted that the signature of the deceased was not even obtained nor was the signature of any nurse or doctor obtained as a witness to the DD even though he admitted that some nurses were present while he recorded it. No explanation was offered by the prosecution for not obtaining the signature or thumb impression of the deceased on the DD. He also admitted that he did not take the opinion of a doctor that the deceased was in a fit state of mind and health to give the statement. Though PW-13 subsequently volunteered to state that he verbally took permission from the nurse or a doctor, he admitted that he did not mention in his report that he had taken such permission; he did not even recollect the name of the doctor or nurse from whom he took the permission. He also admitted that he did not mention in his report containing the DD as to who identified the deceased. He also admitted that he did not mention in the DD that he put some questions to the deceased to test her ability to give any such declaration/statement. Under the circumstances, the possibility of recording of the statement of some other injured person by PW-13 cannot be ruled out. For all the omissions and discrepancies indicated above, we have no difficulty in holding that the two DDs are not acceptable and admissible in law to sustain the conviction. Moreover, in the DD made to PW-15, it was alleged by the deceased that her father-in-law came out of his room and took her child and the said Suchitra (PW-3) to his room i.e. before the appellant dragged her to the room from near the gate. However, as it will be noticed later, PW-3 in her statement never stated that she and the child of the deceased were taken by co-accused to his room; in fact, what she said is that she was present there at the PO and that after kerosene oil was poured upon the deceased, she out of fear hid herself Crl. A(J) No.23/2013 Page 9 of 16 beneath the cot, which is quite inconsistent with the statement of the deceased in the DDs. Thus, in our opinion, the prosecution has failed to establish that the deceased was in a fit state of mind at the time of making the statement and that the DDs were not the result of tutoring, prompting or imagination. Consequently, we have no reluctance in discarding the alleged statements recorded by PW-13 and PW 15 vide Ext.10 and Ext.11. On the contrary, the anxiety to plant evidence by the prosecution is discernible.
11. This then takes us to the evidence of PW-3, who is supposed to be the only eye-witness to the incident, to find out as to whether the two DDs were corroborated in material particulars. As already noticed, the fact that she was allegedly an eye witness to the incident was mentioned by PW-1 in the ejahar. It may be noted again that this witness was examined in Court when she had attained the age of about 8 years i.e. on 25-2-2012. Therefore, she could be about 6 years old at the time of the incident. She testified that she knew the deceased, who was the sister of her mother and that the deceased died due to burn injuries. According to her, the husband of the deceased one day in the evening demanded ₹5,000/- from the deceased and at that time she was present in their room; that the appellant asked her to bring the money from the house of her father but she refused; that thereafter the appellant closed the door of the room and tied her with a sofa and her hands, legs and mouth were tied whereafter the appellant poured kerosene oil over her body and then set her on fire with a match. She then deposed that out of fear, she hid herself beneath the cot whereafter the deceased was taken to hospital and that one day, the police took her to the Court and she gave her statement before a Magistrate and put her signature after she gave her statement. In her statement, she mentioned that after the incident, she went to stay with her maternal grandfather. Now, it must not be forgotten that a child witness is prone to be influenced by his elders and when something is repeated to them by their elders, they begin to imagining them and really feel them to be the truth. Their innocent brains are like blank papers and can retain anything written over them by repeated communication. It is not that what they state is Crl. A(J) No.23/2013 Page 10 of 16 always the result of imagination but is that the same may sometime be on the effect of imagination created by others.
12. A preliminary examination of the witness in order to determine his competency is known as voire dire. The trial court would do well to conduct preliminary examination to satisfy itself with regard to the competency under Section 118 of the Evidence Act as well as under the proviso to Section 4(1) of the Oaths Act. It is, therefore, highly desirable to bring on record the questions and answers put to the witness and to make a record of the satisfaction of the Court. In the instant case, no such record was maintained by the trial court. The court observed that it put several questions to the witness and she gave rational answers to the questions so asked comfortably and was satisfied that she had the capability of understanding questions and give rational answers. But no oath was administered to her. It may be noticed that her statement that the appellant asked the deceased to bring ₹5,000/- from the house of her father on the date of incident was a first time statement in court. So is her statement that out of fear she hid herself beneath the cot is equally a first time statement in court. However, if her statements that she was in the room i.e. at the place of occurrence at the time of incident and witnessed the pouring of kerosene oil on the deceased by the appellant and she hid herself under the cot out of fear, are to be believed, then it begets the question as to how she was recovered from that room or as to how or when she came out of the room. Except for the mention made by PW-1 in his examination-in-chief that the six years old niece of hisp elder sister (PW-3) had gone to his sister's house on a visit and that she was the eye witness to all the happenings, no other witness did mention about her presence at the place of occurrence on the date of incident. In fact, PW-1 admitted that no statements to that effect were made by him in his statement recorded U/s 161 CrPC. It may be worthwhile to note that the statement of PW-3 was recorded for the first time by the IO (PW-15) only on 17-8-2010 even though there is evidence to show that she was available all the time. The only explanation vaguely given by her (PW-15) is that she did not know through her investigation that she was the sole eye- Crl. A(J) No.23/2013 Page 11 of 16 witness; the FIR speaks otherwise. The fact that PW-3 could be a potential witness, genuine or otherwise, could easily be gathered from the FIR itself. Thus, it is not possible to say with definiteness that PW-3 actually was at the place of occurrence at the time of the incident. On the contrary, the possibility that she was a planted or tutored witness cannot be ruled out.
13. That apart, the delay in lodging the FIR is another factor, which cannot be simply brushed aside. In the case at hand, the incident took place on 7-8-2010 between 8.30 PM and 9 PM, but the FIR was lodged with the police only on 11-8-2010 at 12.05 PM. There was, therefore, a delay of about four days in lodging the FIR. PW-9, who lodged the ejahar, deposed that he came to know about the incident on the following day of the incident at about 12 o'clock; that after about 2/3 days from the date of the incident, he lodged the ejahar; that he was out of station for which there was some delay in lodging the ejahar. He admitted that he did not explain the delay in the ejahar; that after 3 days of the incident, he returned to his home and that on the day of occurrence, he was at Kamalpur. However, he stated in his evidence that in a confused state, he had lodged an oral complaint on 8-8-2010 with Agartala Women PS. If he was out of station for three days during that period, how could he lodge an oral complaint with the police on 8-8-2010? Such inconsistent statement of PW-1 made his story suspect. Delay in setting into motion by lodging of complaint and registration of First Information Report (FIR) is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of the occurrence. So, it becomes necessary for the prosecution to satisfactorily explain the delay. The object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailants but also about the part played by the accused, the nature of the incident and the names of the witnesses.─ See Gajanan Dashrath Kharate v. State of Maharashtra, (2016) 4 SCC 604. In the case at hand, an attempt was made by the prosecution to explain the delay in the manner noted above. But the explanation is, we think, is far from satisfactory. He firstly said something about lodging the ejahar verbally with Agartala Women Police Crl. A(J) No.23/2013 Page 12 of 16 Station on the following day of the incident though he subsequently claimed that he was at Kamalpur on the date of occurrence and returned home after three days of the incident. As already noticed, his case that he lodged oral complaint with the police is denied by PW-15 in her evidence. In our opinion, the delay in lodging the FIR for about four days without satisfactory explanation has inevitably raised strong suspicion about the possibility of concoction and embellishment in the case of the prosecution.
14. There is also a delay in recording the statement of the star witness of the prosecution i.e. the minor girl (PW-3). She was examined by PW-15 only on 17-8-2010, i.e. some 7 days after the incident. She admitted in her cross- examination that there was no explanation in her C.D. as to why PW-3 was examined only on 17-8-2010 after some delay. She, however, sought to explain the delay before the Court by stating that before 17-8-2010, she could not know through her investigation that PW-3 was the sole eye-witness. This explanation has to be noted with a pinch of salt. In fact, in the FIR itself, the informant (PW-9) had mentioned that PW-3 was "the eye-witness of all the happenings". In our opinion, such inordinate delay without satisfactory explanation suggests that the investigating agency was deliberately marking time with a view to decide about the shape to be given to the case and the eye witness to be introduced. On the contrary, once again, the anxiety to plant evidence looms large from these circumstances. The effect of delay in recording the statement of eye witness came up for consideration before the Apex Court in Sheo Shankar Singh v. State of Jharkhand, (2011) 3 SCC 654 wherein it was held:
"66. The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon the circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine Crl. A(J) No.23/2013 Page 13 of 16 him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eyewitness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the court to closely scrutinise and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eyewitness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version.
(Underlined for emphasis)
67. We are supported in this view by the decision of this Court in Ranbir v. State of Punjab15 where this Court examined the effect of delayed examination of a witness and observed:
'7. ... The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case. It is, therefore, essential that the investigating officer should be asked specifically about the delay and the reasons therefore.'
68. Again in Satbir Singh v. State of U.P.16 the delay in the examination of the witness was held to be not fatal to the prosecution case. This Court observed:
'32. Contention of Mr Sushil Kumar that the investigating officer did not examine some of the witnesses on 27-1-1997 cannot be accepted for more than one reason; firstly, because the delay in 15 (1973) 2 SCC 444 16 (2009) 13 SCC 790 Crl. A(J) No.23/2013 Page 14 of 16 the investigation itself may not benefit the accused; secondly, because the investigating officer (PW-8) in his deposition explained the reasons for delayed examination of the witnesses."
69. The investigating officer has, in the instant case, stated that Prasant Banerjee (PW 6) had met him for the first time on 2-6-2000 and that he recorded his statement on the very same day. He has further stated that prior to 2-6-2000 he had no knowledge that Prasant Banerjee (PW 6) was a witness to the occurrence. Even Prasant Banerjee has given an explanation as to how the investigating officer reached him. According to his deposition the Inspector had told him that he had come to record his statement after making an enquiry from the person who was sitting on the pillion of his motorcycle on the date of occurrence. Ravi Ranjan, the pillion rider had also informed him that his statement had been recorded by the police. The trial court and the High Court have accepted the explanation offered by the investigating officer for the delay. We see no reason to take a different view or to reject the testimony of this witness only because his statement was recorded a month and half after the occurrence."
15. Thus, the cumulative effect of the dubious dying declarations, the non- reliability of the evidence of PW-3, the delay in lodging the FIR and the inordinate delay in recording the evidence of PW-3 is that serious doubts have been created in the case of the prosecution. It is our criminal jurisprudence that suspicion, howsoever grave it may be, cannot take the place of proof. In our considered view, the case of the prosecution is conspicuous by several gaping holes, inconsistencies, embellishments and discrepancies, which inevitably have raised the possibility that the appellant is the victim of a trumped-up charge. The investigating agency and the Executive Magistrate recording the so-called dying declarations appear to have readily lent their helping hand in concocting a false case and in planting evidence to convict the appellant by hook or crook. This is nothing but an abuse of process of court. In the view that we have taken, it is difficult to sustain the impugned Crl. A(J) No.23/2013 Page 15 of 16 judgment, which is liable to be set aside. We are not oblivious of the legal position that the trial court being a primary court of facts has the advantage of observing the witnesses. Therefore, the appreciation of evidence made by the trial court is entitled to due consideration while considering the evidence but that is not the limitation of the powers of the High Court. If, after examining the record, this Court is in a position to say that the findings so arrived at are erroneous, or contrary to evidence, then not only there is no legal prohibition to do so but in the interest of justice, that must be done. This is a case where we can say without fear of contradiction that the appellant has been convicted by the trial court on the basis of wrong appreciation of evidence.
16. For what has been stated in the foregoing, this criminal appeal succeeds. The impugned judgment of conviction and sentence cannot be sustained in law and is, accordingly, set aside. The appellant is set at liberty forthwith. Transmit the LC record.
JUDGE CHIEF JUSTICE
Sukhendu
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