Gauhati High Court
Crl.A./70/2020 on 8 January, 2025
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
Page 1 of 43
GAHC010309842019
2025:GAU-AS:282
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
Crl.A. No. 70/2020
Sri Shabilal Chetry,
S/O Late Mon Bahadur Chetry,
Resident of Village-9th Mile, Manja,
P.S. Diphu, District-Karbi Anglong, Assam.
.....Appellant
-Versus-
The State of Assam
Represented by PP, Assam.
......Respondent
For Appellant : Mr. K. Das, Advocate.
For Respondent : Ms. S. Jahan, Public Prosecutor, Assam.
Date of Hearing : 25.11.2024
Date of Judgment : 08.01.2025
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BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER (CAV)
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. K. Das, learned counsel for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam.
2. This criminal appeal has been registered on filing of a memo of appeal under Section 374 (2) of the Code of Criminal Procedure, 1973, by the appellant Sri Shabilal Chetry, who is presently serving out his sentence in Jail.
3. In this appeal, the appellant has impugned the judgment and order dated 22.10.2019 passed by the Court of learned Sessions Judge, Diphu, Karbi-Anglong in the Sessions Case No. 56/1991, whereby, the appellant was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- and in default of payment of fine to undergo further simple imprisonment for 2(two) months.
4. The facts relevant for consideration of the instant appeal, in brief, are as follows: -
i. That, on 28.11.1989, one Sri Karna Bahadur Chetry had Crl.A. No. 70/2020 Page 2 Page 3 of 43 lodged an FIR before the In-Charge of Manja Police Outpost, inter alia, alleging that on that day, at about 5:30 PM, Sri Shabilal Chetry(the appellant) had grievously injured one Ganesh Thapa by stabbing him in his stomach with a Khukri, (a type of machete)without any reason.
ii. On receipt of the aforesaid FIR, the In-Charge of Manja Police Outpost made a G.D. Entry No. 476 dated 27.11.1989 and forwarded the same to the Officer-In-
Charge of Diphu Police Station for registering a case. Accordingly, Diphu P.S. Case No. 278/89 was registered under Section 326 of the Indian Penal Code. As the injured Ganesh Thapa later on died in the Diphu Civil Hospital, a prayer was made to the Court for adding Section 302 of the Indian Penal Code in this case, which was allowed.
iii. On completion of the investigation, the charge sheet was laid under Section 302 of the Indian Penal Code against the appellant Sri Shabilal Chetry. Though, the appellant was arrested during the course of the investigation, however, he was later on granted bail and he faced the trial remaining on bail.
iv. Initially, on 21.02.1992, the charge under Section 304 of the Indian Penal Code was framed against the appellant, Crl.A. No. 70/2020 Page 3 Page 4 of 43 however, later on, on 03.10.2019, the charge was altered to Section 302 of the Indian Penal Code. The said charge was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. In the meanwhile, the prosecution side had already examined its witnesses and it declined to re-examine them after alteration of the charges from 304 to 302 of the Indian Penal Code. Similarly, the defence side also declined to recall the witnesses for re-cross-examination after alteration of charges.
v. To bring home the charges against the appellant, the prosecution side examined as many as 10(ten) prosecution witnesses. The appellant was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of the prosecution witnesses and pleaded his innocence. However, he declined to adduce any evidence in defence. Ultimately, by the judgment and order, which is impugned in this appeal, the appellant was convicted and sentenced in the manner as already described in paragraph No.3 hereinabove.
5. Before considering the rival submissions made by the learned counsel for both the sides, let us go through the evidence which is available on record.
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6. PW-1, Sri Krishnabandhu Giri, has deposed that on the day of occurrence, while he was taking rest, the deceased Ganesh came near his house and fell down. He was crying and was injured in his stomach. PW-1 has deposed that on his inquiry, Ganesh told him that Shabilal Chetry, (appellant), stabbed him in the stomach. PW-1 has also deposed that Ganesh was sent to hospital at Manja for treatment and he also saw that the appellant was caught by the people and was taken to the police station.
7. During his cross-examination, PW-1 has deposed that he had not seen the appellant stabbing the deceased. Certain suggestions were made to him by the learned defence counsel, which were all denied by him.
8. PW-2, Rishi Bahadur Chetry, has deposed that on the date of incident, he was milking cow and at that time he heard about the killing of man. He has further deposed that he came out of his home and proceeded to the place of occurrence on the main road where he saw Ganesh Thapa lying with injury on his belly. He has also deposed that many people gathered there and thereafter, he took Ganesh Thapa to the police station and thereafter, to Manja Hospital. He has also deposed that doctor gave first aid to Ganesh Thapa and referred him to Diphu Hospital. He has also deposed that on the way to Diphu Crl.A. No. 70/2020 Page 5 Page 6 of 43 Hospital, Ganesh Thapa was senseless and he did not name anyone. He has also deposed that after about four days, Ganesh Thapa died in the hospital. He also proved the Inquest Report and his signatures thereon as an inquest witness.
9. During cross-examination, PW-2 has deposed that the place of occurrence is at a distance of more than one furlong (approximately 201 meters). He has also deposed that when he arrived at the place of occurrence, he saw many people (about 20 people) assembled there.
10. PW-3, Mon Bahadur Chetry, has deposed that on the date of incident, at about 6:00 PM, when he was on his way back to home from Bazaar, he saw Ganesh Bahadur lying on the road with injury. He has also deposed that later on, his son Rishi Bahadur took Ganesh to the hospital. He has also deposed that Khukri was recovered from a distance from the place of occurrence and police seized it. He proved the seizure list and his signatures thereon as a seizure witness.
11. During cross-examination, the PW-3 has deposed that the Khukri was recovered at a distance of about one furlong from the place of occurrence.
12. PW-4, Smt. Meena Devi Chetry, has deposed that on the date of incident at about 6:00 PM, when she was in her home with her children, Ganesh Lama came to her residence with injury and Crl.A. No. 70/2020 Page 6 Page 7 of 43 lay down there. She has also deposed that inquired Ganesh told that Shabilal cut him. On this, PW-4 started shouting and people of the locality assembled. She has also deposed that public apprehended Shabilal and took him to police station and injured Ganesh Lama was taken to hospital. She has also deposed that Bal Bahadur and her husband (Late Karna Bahadur Chetry) were present at that time. She has also deposed that after five days, Ganesh passed away in the hospital.
13. During cross-examination, she has deposed that she has not seen the incident herself. She has also deposed that Nara Bahadur and Dal Bahadur were present there and no one else was there. She has deposed that Nara Bahadur and Dal Bahadur heard the statement of Ganesh. She has also deposed that her husband asked Ganesh Bahadur about the incident.
14. PW-5, Shri Chitta Bahadur Chetry, who is the younger brother of the appellant, is only a hearsay witness and he has deposed that he came to know about the incident from the public.
15. PW-6, Dr. L. C. Nath, who conducted the post-mortem examination on the dead body of deceased Ganesh Thapa, has deposed that on 2nd December 1989, he was posted as Medical and Health Officer No. 1 at Diphu Civil Hospital. He has deposed that on that day, post-mortem examination of deceased Ganesh Crl.A. No. 70/2020 Page 7 Page 8 of 43 Thapa was conducted in connection with Diphu P.S. case No. 278/89. He has deposed that on examination of the dead body of Ganesh Thapa, he found following: -
"
(1) A male post operated dead body with rigor mortis present, the stitches present on the exterior abdominal wall and left side of the thoracic wall. The eyes are closed and abrasion present on right side of the waist. (2) Cranium and spinal cord-All are normal and no any deformity detected.
(3) Thorax- The seventh and eight ribs of the left side of the thorax are broken due to sharp cut.Repaired left thoracic wall present. Diaphragm is cut on the left side and repaired. Pleurae of the left side of thoracic was lacerated. Larynx and trachea and right lung normal. Left lung-cut wound present on the lower part of left lobe. Pericardium heart - normal.
(4) Abdomen-On interior abdominal wall, stitch post operative was present and two stab wound present with drainage tube.
Peritoneum-Sutured material present with old clotted blood present. Mouth pharynx oesophagus normal. Stomach empty. Small intestine full of intestinal fluid. Large intestine full faecal matter.
(5) Muscle, bones and joints-Injuries are already Crl.A. No. 70/2020 Page 8 Page 9 of 43 described above. Abdomen-Liver left lobe of liver is repaired due to cut injury. Spleen, kidneys, bladder, organ of generation-
normal."
16. PW-6 has deposed that in his opinion, the actual cause of death is due to hemorrhage and shock as a result of injuries to the vital organs like liver and lung.
17. During cross-examination, PW-6 has deposed that he conducted the post-mortem examination at the hospital morgue with the help of sweeper and he prepared his post-mortem examination report by copying from the notes prepared at the time of examination.
18. PW-7, Sushil Nath, who is the eye-witness, has deposed that on the day of occurrence, he was going to Manja Bazaar, along with Kalia and Ganesh Thapa (deceased) to have some refreshment. He has deposed that Shabilal (appellant) and another person followed them and when they reached near Karna Bahadur's residence, Ganesh Thapa went nearby to urinate and they were standing nearby. PW-7 has deposed that Ganesh Thapa was attacked by the appellant after some altercation and he was stabbed with a Khukri. Thereafter, he was taken to Karna Bahadur's residence. PW-7 has also deposed that they tried to caught hold of the appellant. However, he fled away from there. He has also deposed that Crl.A. No. 70/2020 Page 9 Page 10 of 43 Ganesh Thapa thereafter went to Krishna Bahadur's residence from where he was taken to Manja PHC and police was also informed. Later on, the appellant was apprehended. However, another person accompanying him was not found. He has deposed that the police seized the Khukri.
19. During cross-examination, PW-7 has deposed that Kalia and Ganesh Thapa were with him. He has also deposed that appellant Shabilal was accompanied by another boy whom he could not recognize. He also deposed that Ganesh Bahadur was urinating about 15 meters away and it was a dark night. He has also deposed that he did see who stabbed Ganesh Bahadur (it is pertinent to note that in the original deposition form, the word appearing after the word "did" in this sentence has been cut with no identifying initials of the person responsible for doing so). He also deposed that Mon Bahadur and his son and about 10 to 12 people assembled there.
20. PW-8, Sri Vivekananda Das, has deposed that on 28.11.1989, he was posted as In-Charge of Manja Outpost and on that day, one Dil Bahadur Chetry informed verbally at about 6:00 PM that one Shabilal Chetry, (appellant) had injured Ganesh Thapa by a Khukri. Accordingly, he made G.D. Entry No. 474 dated 28.11.1989 and rushed to the place of occurrence with other police staff. On reaching the place of occurrence, they found that the appellant was caught by the villagers and accordingly, Crl.A. No. 70/2020 Page 10 Page 11 of 43 he was arrested. PW-8 has further deposed that the appellant had stated that he attacked and injured Ganesh Thapa with a Khukri and the wooden handle of the Khukri was in the hand of the appellant. PW-8 has also deposed that as stated by the appellant, the handle-less Khukri was recovered from the jungle near the place of occurrence and thereafter, it was seized. PW-8 has proved the seizure list as Exhibit-2 as well as his signatures thereon as Exhibit 2 (2). He also proved the Khukri as Material Exhibit-1. He has further deposed that thereafter formal FIR was lodged by Karna Bahadur Chetry as the incident took place in front of his residence. He has further deposed that on 03.12.1989, the Officer-In-Charge of Diphu P.S. informed that the victim Ganesh Thapa died in the Diphu Civil Hospital. Accordingly, he made prayer for adding Section 302 of the Indian Penal Code in the said case which was allowed. He has further deposed that on completion of the investigation, he found evidence against the appellant Shabilal Chetry, and accordingly, he laid the charge sheet under Section 302 of the Indian Penal Code.
21. During cross-examination, PW-8 has deposed that he did not record the statement of the first informant. He has also deposed that no prayer was made for recording the dying declaration. He has also deposed that he did not seize the wooden handle of the Khukri which was found in the hand of Crl.A. No. 70/2020 Page 11 Page 12 of 43 the appellant. He has further deposed that no signature of the seizure witnesses was taken on the wrapper of the Material Exhibit. He answered in the negative to the suggestive questions put to him by the learned defence counsel.
22. PW-9, Sri Prashanta Phukon, has deposed that on 02.12.989, he was at Diphu Police Station and he conducted the inquest of the dead body of Ganesh Thapa in presence of witnesses. He found injury on the belly of the victim, with T-shaped stitch of operation. He also found wound on the waist of the deceased. PW-9 had also proved the Inquest Report as well as his signatures thereon.
23. During cross-examination, PW-9 has deposed that he examined the witnesses at Diphu Civil Hospital premises. He has also deposed that the victim was admitted in the Hospital from 28.11.1989 to 02.12.1989.
24. PW-10, Sri Ram Bahadur Chetry, is a hearsay witness who learned about the incident from others, therefore, his testimony is not of much relevance.
25. During his examination under Section 313 of the Code of Criminal Procedure, 1973, the appellant had denied the truthfulness of the testimony of prosecution witnesses and had pleaded his innocence. However, he did not adduce any defense evidence.
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26. Mr. K. Das, the learned counsel for the appellant, has submitted that the learned Trial Court had erred in coming to the conclusion of the guilt of the appellant on the basis of the contradictory evidence on record.
27. The learned counsel for the appellant has submitted that the learned Trial Court mainly relied on the testimony of PW-1 and PW-4 wherein, they had deposed that the deceased had made dying declaration before them, implicating the appellant as having stabbed him.
28. The learned counsel for the appellant has submitted that though the PW-1 has deposed that the deceased came crying and fell down near his house, however, PW-4 has deposed that deceased lie down in her premises. This contradiction was ignored by the learned Trial Court before relying on the testimony of PW-1 and PW-4, which according to the learned counsel for the appellant was not the correct approach and it erred in relying on the testimony of said witnesses in spite of material contradiction in their testimonies.
29. He also submits that the learned Trial Court also ignored the fact that the PW-4 has deposed that only Bal Bahadur and her husband (Karna Bahadur Chetry) were present at the place of occurrence, whereas during her cross-examination, she had deposed that Nara Bahadur and Dal Bahadur were present at Crl.A. No. 70/2020 Page 13 Page 14 of 43 the place of occurrence and none other. She has not mentioned about the presence of PW-1 or PW-7, who is reported to be the eye-witness. The learned counsel for the appellant has also submitted that the evidence of PW-2, namely, Rishi Bahadur Chetry shows that it was he, who took the deceased Ganesh Thapa to the police station and to the hospital, however, Ganesh Thapa did not make any dying declaration before him implicating the present appellant, therefore, he submits that the evidence of PW-1 and PW-4 to the effect that the deceased made dying declaration before them is not believable.
30. The learned counsel for the appellant has also submitted that though the deceased Ganesh Thapa was admitted in the hospital on 28.11.1989 and he expired on 02.12.1989, however, no step was taken by the Investigating Officer for recording the dying declaration through the Magistrate or through a doctor, when the deceased was admitted in the hospital. The learned counsel for the appellant has also submitted that there is nothing on record to suggest as to what was the mental condition or the mind of the deceased when he made oral dying declaration before PW-1 and PW-4. He submits that before relying on such oral dying declaration, the Court must be satisfied that at the time of making such a statement, the deceased was in a fit state of mind. In support of his submission, the learned counsel for the appellant has cited a Crl.A. No. 70/2020 Page 14 Page 15 of 43 ruling of the Apex Court in the case of Manjunath & Ors. Vs. State of Karnataka reported in (2023) 14 S.C.R. 727.
31. The learned counsel for the appellant has also submitted that so far as the testimony of PW-7 is concerned, even the learned Trial Court did not regard the said evidence as the main evidence and has used the same only for corroborative purpose to corroborate the testimony of PW-1 and PW-4. He submits that though the PW-7 has claimed to be an eye-witness to the incident of assault, however, PW-1 and PW-4 have not stated anything about his presence at the place of occurrence. The learned counsel for the appellant also submits that PW-7 has deposed that he was accompanied by one "Kalia," however, the said Kalia has not been examined as prosecution witness by the prosecution side, casting doubt on the credibility of the testimony of PW-7.
32. The learned counsel for the appellant has also submitted that though there is a cut of the word appearing after the word 'did' in the testimony of PW-7, however, the learned Trial Court in the paragraph No. 21 of the impugned judgment has recorded that the PW-7 has stated in his cross-examination that he did not see, who stabbed the deceased and the fateful night was a dark night. So, the learned counsel for the appellant has submitted that in view of the categorical statement by the PW-7 during his cross-examination that he did not see as to who Crl.A. No. 70/2020 Page 15 Page 16 of 43 stabbed the deceased, he could not have been regarded as an eye-witness and his testimony cannot be relied upon to come to the conclusion of guilt of the appellant.
33. The learned counsel for the appellant has also submitted that the testimony of PW-7 shows that the appellant was accompanied by another person which the learned Trial Court, after perusal of the Case Diary, found to be one Lakhimi Rai and he was neither examined as a witness nor made an accused in this case.
34. The learned counsel for the appellant has also submitted that there is no evidence to show that the appellant wielded the Khukri at the time of the incident of assault on the deceased.
35. He has also submitted that though there is evidence suggesting that the appellant was holding the wooden handle of the Khukri in his hand, however said wooden handle has not been seized and produced before the learned Trial Court. He submits that the Khukri was also not sent for forensic examination and there is no evidence to link the said Khukri with the offence alleged in this case.
36. The learned counsel for the appellant has also submitted that though the sketch-map of the place of occurrence has not been proved and exhibited in this case, however same is available in the case record and it is prepared, very casually, by the Crl.A. No. 70/2020 Page 16 Page 17 of 43 Investigating Officer. It does not show the location of the house of PW-1 or the house of PW-4, where the deceased is said to have found before he made his oral dying declarations, rendering such sketch map as useless piece of document.
37. The learned counsel for the appellant has also submitted that the prosecution side also did not examine Sri Dil Bahadur Chetry as a witness, who informed about the incident to the police, first in time, and on the basis of whose information, G.D. Entry No. 474 of 28.11.1989 was made and the police had rushed to the place of occurrence. The learned counsel for the appellant has also submitted that there is no evidence showing that the Khukri was recovered as a result of information received from the appellant. He has submitted that though, PW-8 has deposed that as stated by the accused, the handle less Khukri was recovered from the jungle near the place of occurrence, however there is no evidence to suggest that what was the information which was given to the police by the appellant on the basis of which the said Khukri was seized.
38. The learned counsel for the appellant has submitted that the evidence on record against the appellant are not sufficient to prove the guilt of the appellant beyond all reasonable doubt and therefore, the appellant is entitled to get benefit of doubt and acquittal in this case.
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39. On the other hand, Ms. S Jahan, the learned Additional Public Prosecutor has submitted that the learned Trial Court has correctly convicted the appellant under Section 302 of the Indian Penal Code, on the basis of ocular evidence of PW-7 as well as on the basis of oral dying declaration as evident from the testimony of PW-1 and PW-4. She submits that evidence of the witnesses on record when read as a whole reflects a ring of truth in the prosecution story. She submits that the ocular evidence of PW-7 is fully corroborated by the oral dying declaration as evident from the testimony of PW-1 and PW-4.
40. The learned Additional Public Prosecutor also submits that as the testimony of witnesses were recorded after a long gap, there might be certain minor discrepancies on trivial matters which do not go into the root of the case and which are not material in nature so as to affect the prosecution case. She has submitted that the PW-7, who is the ocular witness, has categorically implicated the appellant of having stabbed the deceased with a Khukri and the said testimony could not be demolished during his cross-examination by the defence side. She also submits that in view of the categorical uncontroverted statement of the deposition of the PW-7 implicating the appellant, non-examination of "Kalia", who was stated to be another eyewitness would not be fatal to the prosecution case as it is not the number of witnesses, which are required to Crl.A. No. 70/2020 Page 18 Page 19 of 43 prove a case, but the quality of evidence adduced by the prosecution side.
41. The learned Additional Public Prosecutor has also submitted that there is no material on record to show that there is any kind of animosity between the appellant and PW-1, PW-4 and PW-7 for them to implicate the appellant falsely in this case. She has also submitted that oral dying declaration, if found trustworthy can be the sole basis for conviction in a given case, however, she submits in the instant case, apart from the oral dying declaration before two witnesses which remain uncontroverted, there is evidence of ocular witness in this case, which could not be controverted by the defence side and hence she submits that the learned Trial Court had correctly convicted the appellant under Section 302 of the Indian Penal Code.
42. The learned Additional Public Prosecutor also submits that as there is an ocular witness in this case, hence, the non- examination of the weapon of assault that is Khukri in forensic laboratory would not be fatal to the prosecution case.
43. The learned Additional Public Prosecutor has also submitted that not stating about the presence of the PW-7 at the place of occurrence by the PW-1 and PW-4 is also not sufficient for disbelieving the testimony of PW-7, as there is a time gap between the presence of PW-7 and PW-1 and PW-4 at the place Crl.A. No. 70/2020 Page 19 Page 20 of 43 of occurrence. She submits that the PW-7, who is the eye- witness tried to apprehend the appellant, who fled away after the incident, whereas, the PW-4 and the PW-1 came to know about the incident only when the injured Ganesh came and fell down near their residence.
44. The learned Additional Public Prosecutor also submits that in the evidence of PW-7, it is also there that before stabbing the deceased there was an altercation between the appellant and the deceased. She also fairly submits that, it was proper for the Investigating Officer to get the statement of the deceased recorded by a doctor or by a Magistrate, when he was admitted in the hospital, however, there is no material on record to show the condition of the deceased, while he was admitted in the hospital. There is nothing to suggest that the deceased was in a condition to speak and communicate, while he was admitted in the hospital. Hence, she submits that mere non-recording of the dying declaration by a Magistrate or by a doctor would not be fatal in this case and the oral dying declarations by the deceased before the PW-1 and the PW-4 are sufficient to come to the conclusion of the guilt of the appellant as same gets corroborated by other evidence like the testimony of PW-7.
45. As regards the person who was accompanying the appellant on the date of alleged incident, the learned Additional Public Crl.A. No. 70/2020 Page 20 Page 21 of 43 Prosecutor submits that though there is no evidence on record to that effect, however, the case diary suggests that the man, who was accompanying the accused on that day was one Lakhimi Rai and whose statement was also recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure, 1973 during which he had categorically stated that the appellant had stabbed the deceased with a Khukri and hence, the non-examination of the evidence of said Lakhimi Rai would not be fatal. Further, the case records reveal that he had already expired during the course of the trial.
46. The learned Additional Public Prosecutor has submitted that as the testimony of the relevant witnesses, namely, PW-1, PW-4 and PW-7 remain unshaken on material aspects, the learned Trial Court was correct in coming to the conclusion of guilt of the appellant on the basis of said evidence and hence, she submits that the impugned judgment of conviction of the appellant under Section 302 does not warrant any interference.
47. We have considered the rival submissions made by the learned counsel for both the sides. We have also meticulously gone through the materials on record, including the case record of Sessions Case No. 56/1991, which was requisitioned in connection with this appeal.
48. On perusal of the impugned judgment, it appears that the Crl.A. No. 70/2020 Page 21 Page 22 of 43 learned Trial Court has mainly relied on the testimony of PW-1 and PW-4 before whom, the deceased had made oral dying declaration as well as the testimony of the sole ocular witness, namely PW-7 for arriving at the finding of guilt of the appellant in this case.
49. In a catena of decisions, the Supreme Court of India has held that the law is well settled, that the conviction can be founded solely on the basis of dying declaration if the same inspires full confidence. As regards how to weigh the veracity of an oral dying declaration, the Apex Court has observed in the case of Parbin Ali and Another Vs. State of Assam reported in (2013) 2 SCC 81 as follows: -
"14. In Ranjit Singh v. State of Punjab [(2006) 13 SCC 130: (2007) 2 SCC (Cri) 604] , it has been held that: (SCC p. 134, para 13) "13. ... conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards the correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence."
In this context, we may also notice the judgment in Nanhau Ram v. State of M.P. [1988 Supp SCC Crl.A. No. 70/2020 Page 22 Page 23 of 43 152 : 1988 SCC (Cri) 342] wherein it has been stated that normally, the court, in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration, looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
15. While dealing with the evidence of the declarant's mind, the Constitution Bench in Laxman v. State of Maharashtra [(2002) 6 SCC 710: 2002 SCC (Cri) 1491], has laid down thus:
(SCC pp. 713-14, para 3) "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth.
Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect Crl.A. No. 70/2020 Page 23 Page 24 of 43 their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy itself whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying Crl.A. No. 70/2020 Page 24 Page 25 of 43 declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite."
16. In this context, it will be useful to refer to the decision in Puran Chand v. State of Haryana [(2010) 6 SCC 566 : (2010) 3 SCC (Cri) 197] wherein it has been stated that a mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous and it is the duty of the court to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. The Court further opined that: (Puran Chand case [(2010) 6 SCC 566: (2010) 3 SCC (Cri) 197] , SCC p. 572, para 18) "18. The law is now well settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused."
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17. Regard being had to the aforesaid principles, we shall presently advert how to weigh the veracity of an oral dying declaration. As has been laid down in Laxman [(2002) 6 SCC 710 :
2002 SCC (Cri) 1491] by the Constitution Bench, a dying declaration can be oral. The said principle has been reiterated by the Constitution Bench. Here we may refer to a two-Judge Bench decision in Prakash v. State of M.P. [(1992) 4 SCC 225 :
1992 SCC (Cri) 853] wherein it has been held as follows: (SCC p. 234, para 11) "11. ... In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody's case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying Crl.A. No. 70/2020 Page 26 Page 27 of 43 declaration and we do not think that such a finding is perverse and requires to be interfered with."
18. It is worthy to note that in the aforesaid case this Court had laid down that when it is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration, there was no justification or warrant to discard the credibility of such a dying declaration."
50. In the instant case, the PW-1 has made a categorical statement in his deposition that he saw Ganesh Thapa come crying and fell down near his house. He had injuries on his stomach and on inquiring, Ganesh Thapa told PW-1 that the appellant had stabbed him in the stomach. Neither this testimony of PW-1 could be controverted by the defence side during his cross-
examination nor anything could be projected by the defence side as to why PW-1 would falsely implicate the present appellant with such a grave accusation. Similarly, the testimony of PW-4 also shows that the deceased Ganesh came to her residence with physical injury and on being asked he told that Shabilal (the appellant) cut him. As regards the submissions made by learned counsel for the appellant that the PW-4 has Crl.A. No. 70/2020 Page 27 Page 28 of 43 deposed that the deceased lied down in her premises, whereas, PW-1 has deposed that the Ganesh Thapa fell down near his house, hence, the location where the Ganesh Thapa fell down and made his dying declaration is itself not clear is not a convincing argument to discard the testimony of PW-1 and PW-
4. More so, in absence of any evidence to show that the houses of the PW-1 and the PW-4 are situated far from each other. It is pertinent to mention herein that though a sketch-map was prepared by the Investigating Officer in this case, we are constrained to observe that the sketch-map was most perfunctorily prepared making it as a useless piece of document on the record. Be that as it may, in absence of any evidence on record suggesting that the house of the PW-1 and the PW-4 are situated far away, the testimony of the PW-1 and the PW-4 does not appear to be contradictory to each other and their deposition to the effect that the deceased while making dying declaration lied down near their premises cannot be a ground to discard their testimony or disbelieve that the deceased made such a dying declaration before them.
51. The defence side could not suggest anything to show any reason for the PW-1 and the PW-4 to falsely implicate the appellant in this case. The testimony of the PW-1 to the effect that the deceased came crying and fell down near his house shows that he was conscious when he made his dying Crl.A. No. 70/2020 Page 28 Page 29 of 43 declaration before the said witness. More so, there is nothing on record to suggest that while making the statement before the PW-1 and the PW-4, the deceased was not in a fit condition to make such a statement, as it appears that he made such statement before the said witnesses immediately after the assault.
52. Though, the PW-8, namely, the In-Charge of Manja Police Out Post, who is the Investigating Officer, has deposed that on the next day of the incident, he came to the hospital and Ganesh Thapa stated before him that he was attacked by Shabilal, while on his way to Manja, however, said evidence was not taken into consideration by the learned Trial Court and therefore, we are refraining ourselves from discussing the said evidence. Though it was always proper for the Investigating Officer to get the dying declaration of the deceased recorded by a Magistrate or by a doctor if it was possible, however, same in itself cannot be a reason for discarding the dying declaration made before the PW-1 and the PW-4 by the deceased, as there is no reason to disbelieve the testimony of the PW-1 and the PW-4. The discrepancies pointed out by the learned counsel for the appellate in our considered opinion are minor in nature and do not go into the root of the prosecution case adversely affecting the same.
53. Considering the nature of injury sustained by the deceased in Crl.A. No. 70/2020 Page 29 Page 30 of 43 his vital organs like liver and lungs by long sharp cutting weapon as reflected in the testimony of the PW-6, that is, the doctor who conducted the post-mortem examination of the dead body of the deceased, we are not in any doubt that the death of the deceased Ganesh Thapa was homicidal in nature and the assailant who inflicted the injuries intended to cause his death.
54. The testimony of the sole ocular witness is also not controverted by the defence side. The principles for appreciating the evidence of an ocular witness have been laid down by the Supreme Court of India in the case of Shahaja Alias Shahajan Ismail Mohd. Shaikh Vs. State of Maharashtra reported in (2023) 12 SCC 558 which can be gainfully reproduced as follows: -
"29. The appreciation of ocular evidence is a hard task. There is no fixed or straitjacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
29.1. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out Crl.A. No. 70/2020 Page 30 Page 31 of 43 whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
29.2. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
29.3. When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
29.4. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
29.5. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach Crl.A. No. 70/2020 Page 31 Page 32 of 43 for judicial scrutiny.
29.6. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
29.7. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. 29.8. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. 29.9. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
29.10. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which varies from person to person.
29.11. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get Crl.A. No. 70/2020 Page 32 Page 33 of 43 confused, or mixed up when interrogated later on. 29.12. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. 29.13. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat [Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753] , Leela Ram v. State of Haryana [Leela Ram v. State of Haryana, (1999) 9 SCC 525 : 2000 SCC (Cri) 222 : AIR 1999 SC 3717] and Tahsildar Singh v. State of U.P. [Tahsildar Singh v. State of U.P., 1959 SCC OnLine SC 17 : AIR 1959 SC 1012] ]
30. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in Crl.A. No. 70/2020 Page 33 Page 34 of 43 such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
55. In the instant case, the testimony of the PW-7 to the effect that Ganesh Thapa was attacked by Shabilal after some altercation could not be demolished by the defence side. The evidence of the PW-7 to the effect that Ganesh Thapa was going to Manja Bazaar, along with him and one Kalia before the alleged assault, also could not be controverted and it remained intact. Though, the prosecution side has failed to examine Kalia, however, same would not have much impact as the testimony of the PW-7 could not be demolished during his cross-examination.
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56. Upon perusal of the original deposition form containing the testimony of PW-7, it is evident that there is a cutting of a word following the word 'did,' made without any initials of the person responsible. Even if the benefit of this discrepancy is given to the appellant, accepting that PW-7 did not witness the actual stabbing of Ganesh Bahadur, his testimony during the examination-in-chief remains intact. PW-7 stated that Ganesh Bahadur was attacked by Shabilal following an altercation, and this is corroborated by medical evidence, which found stab injuries on the deceased's vital organs during the post-mortem examination.
57. As PW-7 was accompanying the deceased at the time of the incident and was only about 15 meters away when the deceased went to urinate, he witnessed the appellant having an altercation with the deceased. After the deceased sustained injuries to his abdomen, PW-7 attempted to apprehend the appellant, who was fleeing the crime scene. Considering this sequence of events, there appears to be a ring of truth in PW- 7's testimony when viewed in conjunction with other evidence on record. The post-mortem report further confirms stab injuries on vital organs such as the liver and lung. Moreover, there is no evidence to suggest why PW-7 would falsely implicate the appellant.
58. Though, the PW-1 and PW-4 did not mention the presence of Crl.A. No. 70/2020 Page 35 Page 36 of 43 the PW-7 in their testimony, the testimony of the PW-7 indicates that after the incident, he tried to catch the appellant, who was fleeing the crime scene. Therefore, it is possible that when PW-1 and PW-4 saw the deceased lying down, they did not notice PW-7. Hence, the absence of any mention of PW-7's presence by PW-1 and PW-4 in their depositions does not, by itself, render the testimonies of PW-7, PW-1, or PW-4 inconsistent or unreliable.
59. We are of the considered opinion that there is nothing palpable or glaring in the testimony of PW-7 as well as PW-1 and PW-4 which would affect the probative value of their testimonies. Minor differences in the testimony of witnesses are in our considered opinion, not sufficient to discard the evidentiary value of their testimonies.
60. In the instant case, there are certain lapses on the part of the Investigating Officer in not sending the weapon of offence for forensic examination, in not preparing proper sketch-map of the place of occurrence, in not taking any steps for getting the dying declaration of the deceased recorded by a Magistrate or a doctor and in not examining another ocular witness, namely, Kalia. However, in spite of these lapses, for the reasons discussed in the foregoing paragraphs, the testimony of PW-7, PW-1 and PW-4 inspire confidence and there is no inherent improbability or anything which goes into the root of the case Crl.A. No. 70/2020 Page 36 Page 37 of 43 making their testimony unreliable.
61. Though, sufficient evidence regarding the motive of commission of offence by the appellant is not there on record, however, there is evidence in the testimony of PW-7 that prior to the assault wherein the deceased had suffered stab injuries, there was an altercation between the appellant and the deceased which led to the commission of offence. Hence, considering the other evidence on record, the absence of specific proof regarding the motive, in this case, is not enough for disbelieving the testimony of PW-7, PW-4 and PW-1.
62. We are, therefore, in agreement with the conclusion of the guilt of the appellant, arrived at by the learned Sessions Judge, Karbi Anglong, in the impugned judgment, relying on the evidence of the PW-1, PW-4 and PW-7.
63. For the reasons discussed in foregoing paragraphs, we are of the considered opinion that there is no merit in the present appeal and accordingly, same is dismissed.
64. Send back the record to the learned Trial Court, along with a copy of this judgment.
Sanjay Kumar Medhi, J (Concurring):-
65. I have had the privilege of going through the draft of the judgment of my esteemed brother, Justice Kalita and fully agree Crl.A. No. 70/2020 Page 37 Page 38 of 43 with the conclusions. However, on the aspect of the sketch map which was prepared in this case during the investigation, though my esteemed Brother has already criticized the same, something is more to be added.
66. In the instant case, the sketch map was not even proved or exhibited, though it is a part of the case records. However, a perusal of the same indicates that it has been prepared in a most perfunctory manner, as rightly observed by my learned Brother.
67. More often than not, it is seen that the sketch maps in a criminal case which forms an important role in the justice dispensation system are prepared in a mechanical manner, to say the least.
68. The Assam Police Manual (Part-V) itself lays down certain guidelines in Rule 194 which comes under Chapter-III dealing with "Investigation and Detection of Crime". The said Rule lays down that maps are required to be prepared in heinous cases and should accompany the charge sheet. For ready reference, the said Rule is extracted hereinbelow:
"194. Maps required in heinous cases - (a) the following heinous cases map or a plan of, if required by circumstances, both will always accompany the charge sheet: -
(i) Murder.
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(ii) Highway of mail robbery.
(iii) Dacoity or extensive burglary or theft.
(iv) Riot involving grievous hurt or culpable homicide or damage to property.
(b) The map should be drawn to suitable scale which should be marked on it. It will show all particulars likely to be of use to the court, such as, the place of occurrence, the surrounding rooms or houses the houses of the witnesses etc., with their relative positions and distances. The number of the case and the name of the accused should be given at the top and the map should be signed at the foot by the draftsman who should be produced as a witness at the trial to prove the map evidence being adduced to show who pointed out to him the various places marked on it.
(c) Maps to be of value must be prepared as early in the investigation as possible. Particulars derived from witnesses questioned on the spot should not be noted on the body of the map but on a separate sheet of paper annexed to the map as an index thereto, the places indicated being lettered or numbered on the map for reference.
(d) The investigating officer should not prepare the map when a draftsman is available. The witnesses who will point out the places to the draftsman will be sent by the investigating officer to accompany him to the place of occurrence and all necessary instruction with regard to the drawing of the map Crl.A. No. 70/2020 Page 39 Page 40 of 43 should be given by the investigating officer to the draftsman."
69. This Court has also delved into other available materials on the aforesaid issue of the requirement and preparation of sketch maps. A map which has been accurately prepared reduces the length of the reports, gives a better impression on the mind of the reader and even a complicated case can be lucidly explained. A meticulous preparation increases the power of observation of the IO and undoubtedly, plays an important role in the justice dispensation system. In a given case, a properly prepared map would often be handy to test the veracity of a witness who claims to have seen an incident.
70. As per materials available in this regard, there are the following principal types of sketch maps:
i) Regarding interior of a house: Here the description of the immediate scene inside the room where the offence has committed and details thereof, like, blood stains, furniture, articles etc.;
ii) Regarding a house: The description can be of the type of the house, namely, whether it is a hall or consisting of rooms, availability of a courtyard, doors, windows etc.;
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iii) Regarding the environ of a house: The
description would be of the nearest surrounding, like a garden, different floors, compound or campus;
71. Over and above the guidelines laid down in Rule 194 (supra), certain instructions which can be generally taken into account for preparing sketch maps may be noted which are as follows:
i) All sketch maps should clearly indicate the directions and for this purpose, the North point should be ascertained by a compass;
ii) The sketch map is required to be in scale distance and the measurement be made accurately and all important things should be mentioned;
iii) The distances should be measured before the articles/exhibits are seized or taken charge during the investigation;
iv) All measurements are required to be done with equal accuracy and in the same mode;
v) The sketch map is required to show the position of all articles, marks, blood stains, track marks of vehicles etc. which are relevant to the case;
vi) It is absolutely necessary not only to correctly put the distance but also the angles between various articles;
Crl.A. No. 70/2020 Page 41 Page 42 of 43
vii) Any marks, articles etc. on the map should be indicated by alphabets such as A, B, C etc. and the details explained in the margin or on the bottom of the map;
viii) The scale along with the title, the case reference, date, time and the name of the person preparing the same must be recorded in one part of the sketch itself and the signature of the person along with the date should also be put;
ix) The measurements should be made by the sketcher himself and not left to be taken by others;
x) All details should be incorporated in the sketch map at the place of occurrence itself when the same is prepared and nothing should be left to be recollected from memory;
xi) In case of the involvement of a motor vehicle in an accident or an offence, the information regarding point of impact, track of the vehicles concerned, position of the vehicle after the accident, width and nature of the road surface, skid marks and brake impression, position of broken glass or other parts of the vehicle, any fixed objects, like tree, post or poles which might have a bearing, weather condition at the time of the accident etc. should be indicated;
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xii) The map should be done with a free hand on a blank sheet of paper wherein the details mentioned above should be indicated;
xiii) For preparing the sketch maps, the following articles are to be invariable carried:
a) A compass;
b) A drawing (geometry) instrument box;
c) A measuring tape;
d) Plain paper (preferably drawing paper), pencil and eraser.
72. The aforesaid may be taken as a broad guideline in the matter of preparation of sketch map in investigations.
73. Let a copy of this judgment be communicated to the Home Department, Assam and the Director General of Police, Assam so that the same can be circulated amongst all the Police Stations and the Investigating Agencies.
JUDGE JUDGE Comparing Assistant Crl.A. No. 70/2020 Page 43