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Judgment
Mir Alfaz Ali, J
Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. Azad Ahmed, learned counsel for the appellant and Ms. B Bhuyan, learned
Additional Public Prosecutor, Assam.
This criminal appeal is directed against the judgment and order passed by the learned Addl. Sessions Judge, Bilasipara in Sessions Case
No.82/2012, whereby the learned Sessions Judge convicted the appellants under section 302/34 IPC and sentenced them to undergo Rigorous
Imprisonment for life and fine of Rs.15,000/-with default stipulation.
As per the prosecution case, on 04.06.2000, at about 9-10 am, when the victim a young boy aged about 8/9 years, went to cut grass (fodder) the
accused persons Nur Islam (juvenile), Aimona Bibi and Majeda Bibi dragged him to their house and killed him by causing injuries with a dagger and
thereafter threw the dead body in a ditch. An FIR was lodged by Dagu Talukdar, who is the informant of this case, on the basis of which, police
registered Chapar PS Case No.64/2000 under section 302/34 IPC and on conclusion of investigation submitted charge-sheet against all the three
accused named in the FIR. The accused Nur Islam being a juvenile, his case was sent to the JJB and eventually the present appellants stood trial
before the Court of Sessions.
In the course of trial, learned Sessions Judge framed charge under section 302/34 IPC against the appellant, to which they pleaded not guilty. The
prosecution examined as many as 10 (ten) witnesses to bring home the charge against the appellant. After completion of prosecution evidence,
accused/appellants were examined under section 313 Cr.P.C., wherein, both the appellants took the plea of innocence. No defence evidence was
adduced. On appreciation of evidence, learned trial Judge convicted the appellants under section 302 IPC read with section 34 IPC and awarded
sentence as indicated above. Aggrieved, the appellant preferred the appeal.
We have considered the submission made by the learned counsel of both the sides.
The post-mortem examination was conducted by Pw-4 Dr. Amirul Ch. Mondol who found the following injuries on the body of the victim:
The rigor mortis of the dead body was present. Eyes were closed. Mouth was open. Face was pale.
One stab wound measuring 3 cm × 2½ cm present over the neck at the level of thyroid cartilage & 2 × ½ cm right lateral to the mid
line.
Puncture of right carotid artery with oozing of blood was seen.
One abrasion mark of 2 cm × 1 cm present over the medical aspect of right eye brow.
Abrasion mark 2 cm × ½ cm present over upper back at the level of 2nd thoracic vertebrae.
The injuries were ante mortem in nature.
In the opinion of the doctor, the cause of death was due to shock and haemorrhage as a result of cut throat injury sustained by the
deceased.
The doctor in his cross-examination stated that the injuries sustained by the victim could be caused due to fall on a pointed object.
Pw-9 Aymana Bibi mother of the victim stated in her evidence that on the day of occurrence, when the victim was going to bring grass for their
goat, the accused persons called the victim to their house, where the accused/appellants and Nur Islam (juvenile) assaulted the victim and thereafter
dragged him towards the pond. She further stated to have seen the accused persons dragging her son towards the pond, and having seen her son
(victim) being dragged towards the pond she fainted. After regaining the senses, she found her son dead and she also noticed injuries on the chest and
neck of the deceased. During cross-examination of this witness it was elicited, that she did not state before police, in her statement recorded under
section 161 Cr.P.C., that she had seen the accused persons dragging the victim or assaulting him. Learned counsel for the appellants contends that the
testimonies of the Pw-9 cannot be believed as an eye witness account, as she never stated in her previous statement, that she had seen the
occurrence. Evidently the Pw-9 did not state in her statement before police, that she had seen the appellants dragging the victim or assaulting him.
What is therefore apparent from the testimony of this witness is that there was omission of material facts while making statement before the I/O and
she made considerable improvement in version, while deposing in Court, so as to project herself as an eye witness. True it is, that every omission is not
material or every omission cannot be considered as contradiction. But the omission of material facts certainly amount to contradictions having the
effect of eroding the credibility of the witness. Therefore, in our considered opinion no credential can be attached to the oral testimony of Pw-9, who
projected herself to be an eye witness for the first time in Court, in view of her previous statement before police that hearing commotion she went to
the pond and noticed the body of her son. Pw-2 testified that his nephew (victim) was missing and after search, the body was found lying in the pond
near the house of the complainant. Pw-3 deposed that hearing hue and cry when he came to the house of the complainant he had seen the deceased
with injuries. Pw-5 was did not have any personal knowledge about the occurrence. According to Pw-5 she came to know, that the victim was
missing and later on his body was found. Pw-6 stated that hearing commotion behind her house, she went there and found a body lying in the water.
She raised commotion hearing, which Hurmuj Ali (Pw-2) came and brought out the body from the water. Pw-7 stated that the body of his brother
(deceased) was recovered from a ditch and pleaded ignorance as to how the death was caused.
Pw-8 stated that while coming back from Mukteb he noticed a large gathering of people and also had seen the body of the victim Aminul Hoque.
This witness was however, declared hostile by the prosecution and was subjected to cross-examination by prosecution. During cross-examination by
the prosecution, except bringing on record her alleged previous statement before the police, nothing material could be elicited.
Pw-10 is the Investigating Officer. His testimony appears to be more or less formal in nature, as he has basically stated regarding various steps
taken by him in course of his investigation. He further stated that one dagger was recovered from the house of the accused persons on being
produced by Nur Islam who was a juvenile, which was seized by exhibit-5, seizure list.
Learned Sessions Judge basically relying on the oral testimony of Pw-9 and the previous statement of Pw-8, recorded under section 164 Cr.P.C.,
as well as the medical evidence, recorded the conviction of the appellant. As we have already indicated that though the Pw-9 sought to project herself
as an eye witness, indeed she was not an eye witness and therefore, the oral testimony of Pw-9 is hardly worthy of placing reliance. Though Pw-8
was declared hostile, the law relating to the reliability of hostile witness is well settled. It is the settled position, that testimony of a hostile witness does
not get washed off the record merely because the witness has been declared hostile, or the testimony of such witness is sought to be disowned by the
prosecution. If any portion of the testimony of a witness declared hostile, is found to be reliable and consistent with the other evidence, there is no bar
in relying on the testimony of the hostile witness to that extent. Unfortunately what we notice is that there is absolutely nothing in the oral testimony of
Pw-8 which can be of any help to the prosecution.
We further notice that learned Sessions Judge heavily relied on the previous statement of Pw-8 recorded under section 164 Cr.P.C., though such
previous statement of Pw-8 recorded under section 164 Cr.P.C., was not even duly proved, inasmuch as, neither the Pw-8 was confronted with such
statement during evidence nor the same was proved in evidence by calling the concerned Magistrate, who recorded the statement or any other
competent witness. However, learned Session Judge appears to have taken judicial notice of the said statement having found the same in the record
and heavily relied on such statements to record conviction of the appellants, as if, it was a substantive evidence. The settled proposition of law is that
the statement recorded under section 164 Cr.P.C cannot be used as substantive evidence. It can be used to contradict the statement made in court by
the witness to discredit him in the manner provided by the provision of section 145 of the Evidence Act or it can also be used to corroborate the
evidence in Court. But such statement cannot be used independently as evidence by the Court, when there is no substantive evidence before it
susceptible to corroboration.
Another circumstances relied by the learned trial Judge, on the basis of the evidence of the Pw-10, the investigating officer, was the seizure of a
dagger on being produced by accused Nur Islam (Juvenile) from his house, which according to learned trial judge was a strong circumstance and
admissible under section 27 of the Evidence Act. In order to apply the provision of section 27 of the Evidence Act, which is an exception to the
provision of section 25 and 26 of the Evidence Act, in respect of recovery of any incriminating material, firstly the facts discovered must be the direct
outcome of any information given by the accused, secondly, the facts so discovered must be one, which was within the special knowledge of the
accused and must not be within the knowledge of the police and, thirdly, the discovery of facts must relate to the commission of offence. Apparently,
there was no disclosure statement. Only evidence was that the juvenile Nur Islam produced the dagger from his house. There was also no material on
record to show that seizure of the dagger was made pursuant to any statement of the accused whether oral or written or it was within the special
knowledge of the said juvenile. It is altogether a different matter that none of the present appellant produced the dagger. There was also no evidence
to show that the dagger contained any blood stain or any other incriminating thing to establish that the dagger seized vide exhibit-5, was related to the
commission of offence. Apparently, the dagger seized vide exhibit-5, was not sent for any chemical examination, so as to get any link of the alleged
weapon with the commission of offence because in absence of chemical examination or serological test, it would be difficult to connect the weapon
seized with the commission of offence. Therefore, seizure of a dagger on being produced by the juvenile/accused, per-se, in absence of any other
evidence to relate the dagger with the offence is of no consequence, therefore, the seizure of a weapon in the facts and circumstances of the present
case can neither attract section 27 nor section 8 of the Evidence Act. Even if it is assumed for the sake of argument that the juvenile/accused
produced a dagger from his house, in absence of chemical examination or serological test or any other link evidence, which is totally absent in the
present case, mere seizure of dagger, cannot be held to be an incriminating circumstances against the appellant.
From our assessment of the evidence as above, we find the lone witness (Pw-9) projected by the prosecution as eye witness is totally unworthy of
placing reliance. Once the evidence of pw-9 as eye witness is discarded, prosecution is left with no direct evidence. Whatever evidence remains is
circumstantial evidence. The lone circumstance relied by the learned trial Court, being the dagger seized by exhibit-5 is also of no consequence to rope
in the appellant with the commission of offence. In view of the above facts and circumstances, when the lone eye witness relied by the learned trial
Court is not reliable and the circumstances of seizure of alleged weapon is also of no use for the prosecution, the prosecution can by no stretch of
imagination be held to have discharged its burden to prove the guilt of the appellant beyond reasonable doubt and therefore, the impugned judgment of
conviction and sentence is not sustainable. Accordingly, the appeal is allowed and the conviction and sentence of the appellants are set-aside.
The bail bond, if any, stands discharged.
Send down the LCR along with a copy of this judgment and order.