Gauhati High Court
Badhna Kharia vs State Of Assam on 12 February, 1988
Equivalent citations: 1988CRILJ1412
JUDGMENT
1. Sukra Kharia, father of accused Badhna Kharia, was murdered in the night of 19-3-1983 inside his house. The Accused faced the trial for the charge of killing his father. He pleaded not guilty.
2. Prosecution adduced two types of evidence, namely, (1) direct evidence of P.W. 3 Smt. Rukni Kharia, mother of the accused and (2) evidence of the three witnesses - P.W. 2 Kumar Nag, P.W. 4Etowa Kharia and P.W. 5 Mohesh Nayak on the fact of extra-judicial confession of the accused. The learned Sessions Judge relied on this evidence and convicted the accused under Section 302 of the I.P.C. Hence this appeal by accused Badhna Kharia from Jail.
3. There was no dispute on the fact of death of Sukra Kharia in the night of 19-3-1983 as a result of injuries sustained. Mr. M. Ahmed, A.S.I., Bordubi Police Station held inquest over the dead body on 20-3-1983. Ext. 2 was the inquest report. Cut injuries over neck and head were found and recorded in that report. Dr. M.N. Gogoi (P.W. 1) held post morterm examination on the dead body of Sukra Kharia and found two injuries as follows:
(1) one incised wound, size 7 cm. x 3 cm. in the middle part of the right side of the neck cutting the skin muscles, blood vessels, nerves and 3rd curvical vertebra, (2) one incised wound 8 cm. x 3 cm. in the left side of the occipital region of the scalp cutting the bone completely along with the membrane and the brain.
The injuries were found to be ante mortem and the Doctor opined that the death was due to shock and haemorrhage as a result of injuries sustained and that the injuries were caused by heavy sharp cutting weapon. The Doctor also opined that both the injuries were individually sufficient to cause death. Considering the nature of the injuries over the vital parts of the body, we fully agree with the opinion of the Doctor. It was proved that Sukra Kharia died as a result of injuries sustained in the night of 19-3-1983.
4. There was no dispute on the fact that deceased Sukra Kharia, his wife Smt. Rukni Kharia and their son accused Badhna Kharia lived together in one house and were present in the house in the night of occurrence. Smt. Rukni (P. W. 3) deposed before the trial Court as an eye-witness of the occurrence. Her evidence-in-chief as well as the cross-examination was very precise. She deposed as follows:
In Examination in Chief.- At the time of occurrence, my husband, my son (accused) and I were present. Following an altercation between father and son on Saturday night, accused Badhna cut his father with a dao. I tried to resist. But the son felled the father by cutting. I fled out of fear.. I spent the night outside. When I came in the morning, I found cut wounds on the neck and head of my husband.
In Cross Examination.- When they started quarreling, I went out, I did not go to call in people. I was watching. The accused was carrying a dao. I went out when their quarrel intensified - out of fear. Badhna stayed on and cut his father.
Smt. Rukni Kharia was a rustic unsophisticated woman deposing as eye-witness against her son for killing his father. Her evidence will alone be sufficient to convict the accused, if she is found to be truthful and trustworthy witness and nothing is shown that she deposed falsely or in highly exaggerated manner as to the occurrence. Learned Counsel Mr. R.L Yadav has drawn our attention to her cross-examination portion and submits that Smt. Rukni could only see the quarrel between the father and the son and went out when the quarrel intensified and came back in the morning, therefore she had no occasion to see what actually happened and who cut her husband in that night. His submission is based only on superficial examination of the cross-examination portion. In criminal trial, whole of the evidence-in-chief and cross-examination is to be read together for correct appreciation to find out the truth therefrom. Mere reading the cross portion completely ignoring the chief portion will be very much misleading particularly in a serious case like murder. So we find no force in the submission of Mr. Yadav. The evidence of Smt. Rukni Kharia has been quoted above. On examination and scrutiny of her evidence, we find that she was present at the actual occurrence inside her house and immediately came out. She saw the quarrel between the father and the son and she tried to resist; she saw the dao in the hand of the accused; when quarrel intensified, she came out due to fear and then saw accused Badhna Kharia cutting his father with the dao. There is nothing to show that she deposed to falsely implicate her son or exaggerated the occurrence. Evidence of one witness, say a mother, as in this case, bearing quality to the extent required under the law is enough to make the basis for conviction. We find that the straightforwardness of her statement-in-chief as well as in cross examination is enough to inspire confidence that she was a truthful and trustworthy witness. She was genuinely an eye-witness. There could be no reason for her to falsely implicate her own son Badhan Kharia.
5. Extra-judicial confession by itself, for making any basis for conviction, is considered as a weak piece of evidence when the surrounding circumstances create some doubt. Therefore, such type of evidence requires strict scrutiny. Direct evidence or strong circumstantial evidence as to the occurrence gets strengthened by a convicing extra-judicial confession. When the fact of extra-judicial confession is spoken by a person having no reason to state falsely against an accused, it carries value and material for deciding the point as to the guilt of the accused. In the instant case, the witnesses, P.W. 2,P.W. 4 and P.W. 5 have spoken about the extra-judicial confession of the accused. P.W. 4 Etowa Kharia was related to the accused. The accused came to his house in early part of the morning and said, "Uncle, I have cut my father to death". P.W. 2 and P.W. 5 had also deposed that the accused visited their house and told them that he killed his father. Reading the evidence of. these three witnesses, it is found that they accompanied the accused to his house and found that his father was actualy murdered inside the house. Mr. R.L. Yadav, learned Counsel pointed out some discrepancies in the evidence of these witnesses as to their meeting before they visited the place of occurrence. We find no significance in such contradiction because it is found from the evidence of the three witnesses that the accused met them and disclosed about the fact of killing the father by him. We find no reason to entertain any doubt in the evidence of these three witnesses as to the fact of making the confession by the accused before each of them. Further, they have no reason to falsely implicate the accused by manufacturing a false statement as to extra-judicial confession of the accused. It was perhaps natural that repenting his action, the accused visited the house of his uncle (P.W. 4) in the morning and disclosed what he has done at night, and then visited the other 2 witnesses and confessed On scrutiny, we find that his act of disclosure amounting to oral confession before these three witnesses was of voluntary nature. Furthermore, the direct evidence of his mother (P.W. 3) was a corroboration to the extra-judicial confession and vice versa. We also fully rely on this extra-judicial confession which we consider to be true and voluntarily made by the accused before three witnesses. Furthermore, the fact of such an extra-judicial confession had also been disclosed in the First Information Report. This disclosure lends support that the fact of making the extra-jucicial confession was true.
6. The accused took the plea of alibi during examination under Section 313 of Cr.P.C. There was not an iota of evdence nor any circumstance even to suggest the probability of such plea being true.This being absent, the plea rebounds on the accused on the fact of his presence and the occurrence. Furthermore, his presence at the occurrence is established by the straignt for ward evidence of his mother, who saw him quarrelling with father with a dao in hand and cutting his father. The extra-judicial confession by him before the three witnesses is another circumstance to prove his presence at the occurrence. Had he not actually been present in the house, his conduct would have been different in the morning on seeing his father dead with cut injuries. Once an accused takes plea of alibi as his defence, onus to prove it lies on him as it is a matter within his knowlege. Failure to prove an alibi, rebounds on the accused stregthening the prosecution case which is made out by other evidence on record.,This occurred in the instant case.
7. Learned Counsel Mr. R.L. Yadav points out some of the infirmities and submits that the prosecation case has become doubtful for the same Forst that the seribe of the First Information report was not examined. secondly, that there was no indication about the fact of read over the First. Infonnation Report after it was written by the scribe.We find that examinaton of the scribe was not necessary when the informant himselt deposed in the case and proved the First information Report and no contradiction could be focussed from the contents of the information.Ansence of any inficationor note by the seribe as to the fact of read over the contents to the informant,on the body of theFirst Information Report, was in no way a serious defect in the prosecution case;on the other hand the the informant'sevidence was fully corroborated by the First Information Report Tish omission was not a significant infirmity in the case.
8.Learned Counsel Mr. R.L.Yada further submits that the procedural defect in the case and the discrepancies in evidence create doubt as to the prosecution case and accused may be given benefit of doubt.Insupport of this submission he refers to acase bhanda garh v. State of assam reported in (1983) 2 gauhati LR(NOC) 24 : 1984 Cri LJ 217. On going through this decision, we find thatit was a case based on facts that the accused was last seen with the deceased to which the accused admitted in his statement under Section 313 of the Cr.P.C., but the Court came to the finding that the said fact was not proved by andy other evidence. There were also procedural defects and discrepancies in evidence; and so benefit of doubt was given.The facts in the present case are absoultely discrepancies pointed out in this case are of insigniicant character. Minor discrepancies taken together,if constitute a glaring fact of discrepancy then only some weight may be given,at alone is not sufficient to discard the direct convicing evidence of a truthfulness. In the instant case, we do not find any such bundle of minor discrepancies onstituting a glaring discrepancy to discard or to suspect the direct evidence of P.W. 3 and the evidence of P.W. Section 2, 4 and 5 on the fact of extra-judicial confession. In this case, there was no procedural defect. All the material withesses had been examined in the trial. We have no occasion for any anxiety to doubt the prosecution case. The direct evidence of P.W. 3 as well as the evidence of P.W. 2, P.W. 4 and P.W. 5 as to the fact of extrajudicial confession referred to above are found to be reliable and these have proved beyond all reasonable doubt that the accused Badhna Kharia committed murder. Question of benefit doubt dose not at all arise. Learned Sessions Judge had rightly convicted him under Section 302, I.P.C.
9. We find no force in the appeal. Accordingly the appeal is dismissed.