Mon Bora alias Bijay Bora vs State of Assam

P.G. Agarwal, J.—Both these appeals are heard analogously as they are directed against the common judgment passed by the Sessions Judge, Golaghat on 22.6.1999 in Sess. Case No. 15/98 whereby the learned trial court convicted the accused appellants, namely, Sri Rubu Singh, Sri Basa @ Khireswar Sarmah and Sri Mun Bora @ Bijay Bora u/s 302, IPC and sentenced each of them to suffer Imprisonment for life and to pay a fine of Rs. 1,000 in default further rigorous imprisonment for one year.

On 7.1.1997 Smt. Bouti Bhowmik lodged a written FIR (Ext.1l) before police stating inter alia that on that day at about 10 PM the three accused persons named in the FIR called out her younger brother Tapan De from the house of their neighbour Jaladhar Majumdar and thereafter assaulted him with khukuri, dagger etc. and caused grievous hurt to the injured and when he was removed to Golaghat Govt. Hospital where the doctor declared him dead.

After usual investigation police submitted charge sheet and the case was committed to the Court of Sessions and the learned Sessions Judge framed charge u/s 302, IPC. During trial the prosecution examined five witnesses, PW-4 Dr. S.N. Tamuly held the autopsy over the dead body of the deceased Tapan Dey and found the following injuries: -

"(1) One incised wound over middle of left chest of size 2" x 1" x 1/2". On further dissection the underlying pericardium and heart found lacerated with full of clotted blood.

(2) One incised wound on the left hypochondrion of size 3" x 1" x 1", On further dissection the underlying viscera, colon, peritonium. spleen found lacerated with full of clotted blood.

(3) One incised wound on the right internal thigh of size 41/2" x 1/2 x 1". On further dissection the underlying muscles, fomural artery and veins found lacerated with clotted blood.

(4) One incised wound on the right side of the neck of size 4"x 2"x 11/2". On further dissection the underlying muscles and external carotid artery and vein found lacerated with full of clotted blood.

Abdomen:- Peritonium lacerated."

In the opinion of the doctor the injuries were ante-mortem in nature and sufficient to cause death individually also. The death was due to haemorrhage and shock as a result of the injuries sustained by the deceased. There was no meaningful cross-examination of the doctor and in view of the oral, medical evidence on record, the death of the deceased as a result of the injuries sustained on the date of occurrence is not disputed or challenged.

PW-3 is Jaladhar Mazumdar who has deposed that while the deceased was enjoying a T.V. Serial at his house some one called the deceased from outside and Tapan Dey went out. After some time he heard hulla outside and he came out and found the deceased Tapan Dey lying in a pool of blood near the roadside drain. PW-3 also saw the informant Beauty Bhowmik at the place of occurrence. The injured was removed to hospital where he died. PW-2 Himangshu Paul is another witness who arrived at the place of occurrence on hearing hue and cry and found the deceased lying injured by the side of the road. He also found PW-1 and other persons at the place of occurrence and they removed the injured to hospital. PW-2 was informed by PW-1 that the deceased was assaulted by three accused persons, namely, Rubul, Mun and Basa.

The entire prosecution case rests on the testimony of sole eye witness Beauty Bhowmik who lodged the FIR. She is the sister of the deceased. She has deposed that on the date of occurrence three accused persons came in search of her brother Tapan Dey who was watching T.V. In the house of the neighbour Jaladhar Mazumdar (PW-3) and called the deceased from the house of Jaladhar Mazumdar. PW-1 also came out of the house and she saw an altercation going on in between the accused persons and the deceased. Thereafter accused Basa dealt a blow on the neck of the deceased with a dagger whereupon Bhaity fell down. Two other accused Mun and Rubu again assaulted the deceased. When the deceased tried to resist the attack by lifting his leg, a dagger blow was given on the leg also. After the assault, the accused persons fled away. The witness claimed that she had seen the occurrence and recognised the accused persons from the light of (electric) lamp. PW-1 raised alarm whereupon PW-2 and other witnesses came and they took the injured first to the garden hospital and then to a Nursing Home and thereafter to Civil Hospital, Golaghat where he was declared dead. PW-1 lodged FIR (Ext.1).

The law regarding basing conviction on the evidence of the solitary eye witness is more or less well settled by a catena of decisions of the Apex Court. There is no bar under the law to base conviction on the evidence of solitary witness. In the case of Anil Phukan Vs. State of Assam, the Apex Court observed:

"A conviction can be based on the testimony of a single eye-witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony - alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recordirig conviction. It is only when the courts find that the single eyewitness is a wholly unreliable, witness that his testimony is discarded in toto and no amount of corroboration can cure that defect."

The above principle was reiterated in a later decision in the case of Marwadi Kishor Parmanand and Another Vs. State of Gujarat,

In the light of the above let us examine the testimony of PW-1 Beauty Bhowmik. This witness was cross-examined by the defence and some contradictions were put to her and brought on record through the investigating police officer. During her examination before the court the witness claimed that accused Basa gave a dagger blow on the neck of Bhalty. Accused Rubu and Mun gave dagger blow on the chest and leg. However, in her statement u/s 161, CrPC, the witness did not specifically state about the assault on various parts of the deceased. But she saw a scuffle going on between the deceased and the three accused persons on the road. She also stated that though she did not see the weapon, she guessed that the accused persons were carrying dangerous weapon under the jackets they were wearing.

In order to appreciate the evidence and the contradictions brought out by the defence Case Diary was called for by us and we have perused the same. So far the actual assault is concerned, the witness did not state specifically before the I/O; but she did say that the accused persons were carrying dangerous weapon inside their jackets. She (PW-1) saw a scuffle going on between the accused persons and the deceased and she recognised the accused persons in the light of street lamp. The accused persons fled away after the assault and when she reached near the deceased, she saw the injuries on his person. Learned counsel for the appellants submits that though the investigating police officer did prepare the sketch map of the place of occurrence, the same was not brought and exhibited !n court to show the existence of street light. It is further submitted that there are certain exaggeration in the statement of the informant and as such her evidence is not wholly reliable. The investigation made in the present case shows indifferent attitude of the public as well as the police in investigation of a serious crime of murder. Moreover, we find that the witnesses in order to make themselves more reliable, they resort to contain exaggeration. We may recapitulate the observations of the Apex Court in the case of State of U.P. Vs. Anil Singh, The Apex Court observed:-

"In some cases, the entire prosecution case is doubled for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is weii to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matagini 24 CWN 6 : AIR 1919 PC 1571, the Privy Council had this to say (at p.628)(of Cal WN): (at p. 158 of AIR):

"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence."

The Apex Court further observed:-

"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to call out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood there so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."

In the recent case of State of Himachal Pradesh Vs. Lekh Raj and Another, the Apex Court observed:-

The criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the courts are required to adopt a rational approach and judge the evidence by its intrinsic worth and the animus of the witnesses. The hypertechnicalities or figment of imagination should not be allowed to divest the court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a Utopian thought but have to be considered as part and parcel of the human civilization and the realities of life. The courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosions cannot be given a bonus in favour of those who are guilty of polluting society and mankind."

There is no doubt that the claim of the witness regarding specific assault on the person of the deceased was not there in her statement u/s 161, CrPC. It may be due to the fact that there was no proper examination of PW-1 by the investigating police officer and being a rustic window, she did not give detailed narration. But the question is whether the above omission diminishes the evidentiary value of PW-1. She had categorically stated that after the scuffle that took place between the accused persons and the deceased, the accused fied away and when she went near her brother she saw injuries on the neck, chest and leg. The statement of the witness was fully corroborated by the medical evidence on record. Thus it can be inferred without any doubt that the injuries were caused by the accused persons and none else. So far the calling of the deceased from the house of PW-3 is concerned, the old man has categorically deposed to that extent and to that effect and his evidence remains in tact. So far the street light is concerned, the witness did state about the recognition of the accused in the above light.

PW-1 is the own sister of the deceased. She had no animus with the accused persons and she had no reason to falsely implicate the accused persons and thereby allowing the actual assailants to go scot free. Further the FIR (Ext. 1) was lodged soon after the incident wherein the names of the accused persons appear as the assailants. It rules out the possibility of any concoction or fabrication.

PW-1 has also stated about the motive for the assault. The dispute between the accused and the deceased was in respect of supply of bamboo in the Numaligarh Refinery. The chronology event shows that the accused persons armed with; dagger, khukuri etc. came in search of the deceased and thereafter they assaulted her brother. One of the brother of accused was also present at the place of occurrence along with a cycle to facilitate their escape. The post-crime conduct of the accused persons is also relevant. Soon after the incident police searched them and found them absconding from their houses. They were subsequently apprehended at Marangi situated at a distance of about 2 kilometres from the house of the accused persons. Thus, it shows that all the accused persons acted in furtherance of their common intention.

Further we find that in this case no charge u/s 34 IPC was framed and the accused persons were convicted for the offence u/s 302, IPC. This may be due to the evidence of the doctor that the injury taking individually were sufficient to cause the death of the deceased.

In view of the foregoing discussion we find that the evidence of the solitary eye witness is reliable and trustworthy and the learned trial court rightly based the conviction on the evidence of the said witness which stands fully supported and corroborated by the other evidence on record. We find no merit in this appeal and it is accordingly dismissed,

Send down the records.