Ramen Hazarika vs State of Assam

V.D. Gyani, J.—This appeal arises out of judgment dated 9.9.96 and 16.9.96 delivered by learned Sessions Judge, Sibsagar in Sessions Case No. 23(S-S)/94 thereby holding the Appellant guilty of offence punishable u/s 302 IPC and sentencing him to undergo imprisonment for life with fine of Rs. 1,000/- or in default for payment of fine, to suffer 6 months R.I.

Prosecution case stated in brief was that the deceased Sudhir Singh was an employee of the contractor Firm known as M/s. J.M. Agarwalla & Company owned by one Jabarmal Agarwalla. This firm had a temporary shed or structure just in front of O.N.G.C, CTF Office at Athkhel Geleky within the jurisdiction of Geleky Police Station, District Sibsagar. It was used as a store-room/godown for the said Firm. On the fateful day of 24.8.92 around 9.20 A.M. Sudhir Singh was found dead in the said storeroom. At the material time, P.W. 6, Sushil Agarwalla, nephew of Jabarmal Agarwalla had come to the Store Room. He saw the accused Appellant coming out with a small dao like weapon shouting "I have cut Singh" "I have cut Singh", so shouting he fled away. On entering the Store room Sushil Agarwalla found that the deceased was lying with cut bleeding injuries on the neck. Another employee of the firm, Debendra Neog, P.W. 1 on being asked by P.W. 6 drafted an FIR, Exhibit-1 and lodged the same at Geleki Police Station. After lodging the report, he rushed to the Hospital and returned to the place of occurrence with a doctor who declared the injured victim dead.

P.W. 7 on receiving the ejahar, Exhibit-7 registered a case u/s 302 IPC and started investigation. An inquest was held as per Exb-2, the dead body was forwarded for post mortem examination, a sketch map was prepared and statements of witnesses were recorded.

It was the prosecution case that the accused was taken into custody on 26.8.92 around 3.30 P.M. and while in custody, the weapon of attack, namely, the dao was recovered at the instance of the accused from bank of a pond. P.W. 4, Manik Hazarika and P.W. 5, Bhim Kanta Sarma are the witnesses to the seizure memo, Exhibit 4 as claimed to have been prepared on the spot. It was P.W. 3 who performed post mortem examination. The following injuries were found:

(1) One incised wound at the back of the upper part of the neck extending to the front of the neck along the left side of the neck - 8"x3"x3". All the great vessels of the neck in the wound region were cut.

(2) One incised wound on the left side of the neck below the wound No. 1, 5"x2"x2". Vessels in the wound region were cut.

As per opinion of P.W. 3, Sudhir died due to shock and haemorrhage as per injuries sustained by him. Prosecution examined as many as 7 (seven) whiteness including the Investigating Officer and the Medical Officer in support of the charge. But as has been rightly noted by the learned trial Judge, there is no eye witness. Admittedly the crime was committed inside a room. The prosecution case hinges on the circumstantial evidence and the recovery and seizure of the incriminating weapon, the dao.

The learned trial Judge has noted the following incriminating circumstances as pointing to the guilt of the accused:

(a) the deceased was living in the room/godown of the temporary camp of the aforesaid firm;

(b) the dead-body of the deceased was found lying inside the floor of the room/godown;

(c) fresh injuries on the neck still bleeding was seen when the dead body was noticed soon after the occurrence;

(d) accused was seen coming out of the room, armed with a dao;

(e) accused was being heard shouting and exclaiming - "I have cut Singh" "I have cut Singh";

(f) no other person inside the room except the deceased and the accused were there at the time of occurrence; and

(g) discovery of the weapon of the crime was made at the accused''s instance which he kept concealed under ground on the bank of the pond in the back side of his house.

Another significant point which may be noted at this stage is that P.W. 2, the seizure witness, P.W. 6, the informant who lodged FIR, Ex-1 have not supported the prosecution case and they have been declared hostile. The trial Judge however found the accused guilty and convicted and sentenced him as noted above. Hence this appeal.

Learned Counsel Mr. J.M. Choudhury appearing for the Appellant has raised the following points:

(i) that there is no legal evidence available on record to sustain the conviction as recorded by the trial Court;

(ii) that the learned trial Judge erred in law in placing intensive reliance on the previous statements of witnesses; even without legal proof of such statements;

(iii) the circumstances relied upon by the trail Judge firstly have not been established and secondly they do not form such a chain as to unerringly point to the accused and accused alone as the perpetrator of the crime;

(iv) the trial Court was palpably wrong in placing reliance on entries made in the case diary, in support of the prosecution case.

Learned Public Prosecutor Ms. K. Deka however supporting the conviction submitted that despite the infirmities, the circumstances relied upon by the trial Judge unerringly point to the accused and conviction so recorded does not call for any interference.

Since the main question involved in this appeal is proof of guilt by adducing circumstantial evidence it would not be out of place to recall to mind the five principles, governing the law of circumstantial evidence as enunciated by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, and the same again been reiterated in a recent judgment as reported in Jaharlal Das Vs. State of Orissa,

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

Keeping in view the above principles, let us now examine pieces of circumstantial evidence as relied upon by the trial Court for convicting the Appellant. The most incriminating circumstance found against the accused is that he was seen coming out of the store room armed with a ''dao'' with a shouting, I have cut Singh. Other circumstances such as the fact that the accused was living in the store room, the dead body found with fresh injuries in the store room are but ancillary to the above noted circumstance that the accused was seen coming out of the room armed with a dao.

Naturally, therefore, the first question that arises for consideration is as rightly urged by the learned Counsel whether this incriminating piece of circumstance is legally established.

There is both documentary as well as oral evidence on the point. The documentary evidence is the FIR, Ex-1 reproduced below for ready reference:

To

The Officer-in-charge,

Geleki Police Station

Dated, the 24th August''92.

Sir,

Humble submission is that at about 9.20 on this 24th day of August, 1992, Sri Ramen Hazarika, a resident of Lon Puria village, cut Sri Sudhir Singh, an employee of my paternal uncle''s company, M/s. J.M. Agarwalla, to death in front of C.T.F. at Athkhel. People working nearby heard him shout repeatedly, saying, "I have cut Singh".

I, therefore, pray that you would be kind enough to take necessary action against the said person, and oblige.

Yours faithfully,

Sd/-

Sushil Kumar Agarwalla,

Son of B.L. Agarwalla,

B.G. Road, Sibsagar

The importance of a First Information lies in the fact that it is the earliest version of the case before there is time to improve upon or by lapse of time forget the essential facts. Although an FIR is not a substantive evidence, but at the same time, its importance as the earliest version of the case cannot be over stated and Ex-1 would have gone in long way in strengthening the prosecution case, but for the fact that the maker thereof P.W. 6, Sushil Kumar turned hostile. We are equally conscious of the legal position that the evidence of a hostile witness is not to be out right rejected. He can still be acted upon if it finds corroborative support from other reliable quarters.

The learned trial Judge has taken it as though P.W. 6 had actually seen the Appellant inflicting dao injuries, keeping aside for a while, non-compliance of the procedure to be followed for bringing out a contradiction in the FIR as a previous statement of maker thereof, and taking it on its face value, yet the tenor of the FIR does not suggest that he had seen the occurrence. Even the learned trial Judge having noted that it was a close door murder and there is no eye witness, but while appreciating the evidence of P.W. 6 appears to have been over swayed by the fact as if Sushil Kumar was an eye witness.

Having declared him hostile, the lest that was expected of the prosecution was to follow the procedure as prescribed under the proviso to Sub-section (1) of Section 162 Code of Criminal Procedure and Section 145 of the Evidence Act. The Supreme Court as back as 1959 in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, has succinctly explained by giving illustrations how material omissions amounting to contradictions in the statements of witnesses are to be proved. Leave aside confronting a particular part of the statement, even previous statement as recorded itself was not confronted to the witness. What holds good in the case of P.W. 6, Sushil Kumar, so far as following the procedure is concerned, equally holds good in case of other witness declared hostile by the prosecution. All that Sushil Kumar has stated in the FIR is that "''people working nearby heard him shout repeatedly, saying "I have cut Singh". He does not even mention a fact that he was seen coming out of the store room with a dao in his hand. The FIR is silent on the point. Now turning to statements made by P.W. 6 in his cross-examination by prosecution reads as follows:

The I.O. had recorded my statement. It is not a fact that I said to the I.O. "At about 9 A.M. today, the 24th August, 1992, I came to the C.T.F. office at Geleki. At about 9.201 saw the young man named Ramen Hazarika of Lon Puria village who was carrying a small dao came out of the Singh''s room. As soon as he came out he said that he had cut Singh, and then he fled. At that time, there were many people in front of the C.T.F. office. Seeing Ramen leave shouting like that, I along with many others went to Singh''s residential quarters and found his throat slit. A little later, I went to hospital in a vehicle and informed a doctor. The doctor came and declared Singh dead. I had lodged an ejahar with the thana before the doctor''s arrival. It is not a fact that I have given false evidence for the sake of the accused.

He has denied having stated to the I.O. that he saw young man named Ramen Hazarika of Lon Puria village who was carrying a small dao came out from Singh''s room. There is nothing to indicate that his pointed attention was invited to that part of his previous statement, admitted reduced to writing the statement itself has not been exhibited. The I.O. has been examined as P.W. 7 his statement on the point reads as follows:

P.W. Sushil Agarwalla stated before me that on 24.8.92 at about 9 A.M. he came to C.T.F. office at Geleki and at about 9.20 A.M. he saw Ramen Hazarika of Lanpuria village coming from the room of the deceased with a dao and immediately his (accused) emerging out of room he shouted, he had cut Singh with a dao and fled away.

Even the I.O. does not refer to the previous statement as recorded by him. The particular part or parts of the recorded statement as "A....A", "B...B", "C...C" should have been marked and the recorded statements should itself be exhibited as Exbts. 1, 2, 3 or 4 whatever it is. But nothing sort has been done. When the statement is reduced to writing, and admittedly in the instant case it has been so reduced to writing, the part of the statement sought to be contradicted must be duly proved in accordance with law, more so when the witness is declared hostile and the prosecution want to rely on the previous statements as recorded by Police.

It is significant to note that neither the FIR, Ex-1, nor the previous statement of the witness recorded u/s 161 Code of Criminal Procedure has been confronted to the witness. Let alone give an opportunity of explaining apparent discrepancies or contradictions between the statements made by him before the Court and the statements as recorded earlier. It should not be forgotten that the substantive evidence is what has been adduced before the Court. Previous statement do not and cannot constitute substantive evidence, they can only be used for the purpose of contradicting the witness to the extent permissible, and by following the procedure as laid down under proviso to Sub-section (1) of Section 162 Code of Criminal Procedure and Section 145 of the Evidence Act.

The above procedure has not been followed in the instant case and yet it is this very contradictory statements which have been liberally been used of by the trial Court for recording the evidence as it did.

The other witness who has been much relied upon by the trial Judge is P.W. 1, Debendra Neog was also one of the employee of the said Firm, M/s. J.M. Agarwalla & Company. At the time of incident, he was supervising some works done by the labourers and his own showing was about 250 meters away from the store house. To quote his own words:

I then heard a commotion in the direction of the store house. That store house was used as a camp also. A chowkidar by the name of Suresh Kumar Sarma lived in a room of the store house. Hearing the commotion, I looked up at the camp, i.e. the store house, and found a gathering of 10 or 12 persons there. Coming to the store house, I found Sudhir Singh lying injured in one of its rooms. He used to live in that room. There is a gate in front of the ONGC (CTF) from that gate, our store house is about 50 yards away. Oil tanks etc. are kept in the ONGC (CTF). Its personnel also live there. I saw bleeding injuries on Sudhir Simgh''s neck. He was not well enough to speak. Sushil Agarwalla and I then went to thana and gave the information. I had written an ejahar as dictated by Sushil Agarwalla. Ext. 1 is the ejahar and Ext. 1(1) my signature as the scribe.

What emerges from the above statement is that he does not say at all that he saw the accused coming out of the room, leave aside the question that he was armed with weapon, he associates P.W. 6 when both of them went to Thana and lodged the FIR, Ext-1 which was written by him. As noted above, even this FIR is silent on the most crucial point that accused was seen coming out from the room with dao in his hand. If that was the prosecution case then having declared the witness, P.W. 6 hostile it should have been put to him, but even that has not been done. His previous statement as recorded by police u/s 161 Code of Criminal Procedure has not been confronted to him and there is an apparent improvement what is not stated in the FIR, Ex-1, the earlier version is sought to be introduced by declaring the witness hostile and suggesting that he had seen the accused coming out of the store room with a dao in his hand. This part of the statement is an apparent improvement which has escaped notice of the learned Judge and indeed it is on this crucial point that fate of the prosecution case hinges. Further reading the statement of P.W. 1 as already noted above there was one Chowkidar. Suresh Kumar used to live in a room of the store house and Sudhir Singh it appears was living in Anr. room of the store house. The description of the structure store house as given by P.W. 1 makes it amply clear that there were other personnel of the ONGC who also lived in the vicinity. The learned trial Judge is not right when he says that no other person except the deceased and the accused were there at the time of occurrence. This circumstance as sought to be made out by the learned trial Judge is not supportable either by evidence of P.W. 6 or P.W. 1, rather the statements of P.W. 1 runs counter to the finding recorded by the trial Court, at any rate, it is not supportable by the evidence of P.Ws. 1 and 6. The first requirement on substantial evidence that the incriminating circumstance sought to be relied upon must be convincingly established, is not fulfilled in this case.

The learned trial Judge has placed implicit reliance of recovery of dao at the instance of the accused as a strong corroborative circumstance impleading the accused with the involvement of crime. Here again, there are certain inherent infirmities to which the learned trial Judge has not addressed himself. Firstly, place of recovery is a public pond accessible to all, secondly the accused, was arrested on I.O.''s own admission on 27.8.92 and forwarded to the Court on 28.8.92. It is one of the primary requirement of Section 27 of the Evidence Act that the information leading to discovery of a fact must have been given by the accused while in the custody of police and when it is admitted by the I.O. that the accused was arrested on 27th of August, the discovery of fact based on information received from the accused, could not have been on 26th of August, it is as simple as it. But to over come this difficulty the I.O. added that he had taken the accused on custody on 26th of August. Without going into the question of custody, detention and arrest, let us now see how learned trial Judge has approached this question:

From the deposition of the I.O. it would become clear that the accused was detained for interrogation on 26.8.92 at about 3.30 P.M. It was during his interrogation that he led police to the discovery of the dao. The statement of the accused''s interrogation has not been brought in evidence of the 1.0. but, on consulting the case diary his interrogatory statement is very much available in the case diary from where it is clear that it was the accused who had led to the discovery of the dao from the bank of the pond in the back side of his house. Nonetheless, the seizure list, Ext. 4 is very much descriptive on this fact. This Ext. 4 is also admitted by the defence. Ext. 4 was made on 26.8.92.

It necessarily takes us to the question how far the case diary can be made use of by the Courts and that to for seeking corrobora-tion of the prosecution case. This question has been resolved by the Supreme Court in Habeeb Mohammad Vs. The State of Hyderabad, The Supreme Court has held that the police diaries of a case under inquiry or trial can be made use of by a criminal Court only for aiding it, in such inquiry or trial. The Court would be acting improperly if it uses them in its judgment or seeks confirmation of its opinion on the question of appreciation of evidence from statements contained in such diaries.

User of the case diary as made by the trial Court is diametric approach. Law as propounded by the Supreme Court does not permit such kind of user of case diary by the Courts. A reference has also been made to Exb-4, as a document admitted by defence, let us first be clear about this admission. It is not as if the material question on the point put to the accused in his examination u/s 313 Code of Criminal Procedure is quoted below along with his answer:

Q. No. 5. The I.O. P.W. Debaranjan Sarma has deposed that you have led to the discovery of dao from a pond kept buried near bank situated on the back side of your house and which being material Exhibit -1 was seized by 1.0. What have you got to say?

Ans.: I do not know where the police found the dao. The police had not taken me along. He has lied.

Where is the question of admission, when the accused has categorically denied, having been taken to the spot and denies any knowledge wherefrom the police got the weapon, how in face of this statement made by the accused Ex-4 the seizure list be imputed to him.

A mere reading of this seizure list which by no stretch of imagination be said to be a piece of substantive evidence. If one reads the seizure list and Section 27 of the Evidence Act together, it is only such information which distinctly relates to the fact thereby discovery is made admissible in law and not the whole of it. Section 27 contravenes Sections 24, 25 and 26 and also the proviso to Sections 25 and 26. The learned trial Judge has allowed it to go on record in a whole hog manner without considering the basic requirement as to why much of the information given by the accused distinctly relates to or related to the fact discovery. The rest of the description is simply inadmissible in law, they must be proved like any other fact and it may be noted that S.I. Debaranjan Sarma who prepared the seizure list was not examined as a witness and those of the attesting witnesses Manik Hazarika and Bhim Kanta Sarma P. Ws. 4 and 5 respectively were declared hostile by the prosecution. P.W. 4 categorically stated that he was not present when the dao was searched out by the police and P.W. 5 stated that he was called by police to the accused''s house where his signature was obtained in Exh. 4. In this state of affairs where an incriminating weapon is stated to have been recovered from a pond, behind the house of the accused, a fact not supported by independent attesting witnesses and the police officer who recovered the incriminating article having hot been examined, it does not stand to reason on what basis the learned trial Judge could place intrinsic reliance on recovery of the incriminating weapon, as if it is not enough, no attempt as such has been made to connect the weapon with the crime. It was not even sent for chemical examination to ascertain if it was blood stained, it was human blood, leave aside the question of tracing of its origin. With all these infirmities and illegalities the so called recovery, which is sought to be made out with the help of an entry contained in the case diary, is just to be rejected and accordingly rejected. What is significant to be noted is the entry made in the case diary, has not even been put to the accused in his statement recorded u/s 313 Code of Criminal Procedure and incriminating fact not put to the accused cannot be made use of for basing and sustaining conviction recorded against him.

Of course law does not require the information given by an accused in police custody leading to the discovery of fact to be recorded in writing, but as pointed out by Calcutta High Court in Panchu Gopal Das Vs. The State, "It is proper for the prosecution if they want to adduce evidence under this section to prove by production of written record only so much of the statement as led to the discovery of the article. An oral statement without corroboration by any written record of any such statement contemporaneously made, even if admissible, is unsafe to rely on." In the instant case, the trial Court has relied upon the written record of interrogation and information as contained in the case diary contrary to what has been laid down by the Supreme Court in Habeeb Mohammad (supra). If it was to be relied upon the least that was expected of the prosecution to supply a copy thereof to the accused alongwith the charge sheet, apart from the mandate of Section 27 Code of Criminal Procedure, the fairness of procedure dictates and demands that a copy of the entry relating to Section 207 of the Evidence Act as made in the case diary should have been supplied to the accused right from the stage of filing of charge sheet, instead of so supplying, it has been made use of by the trial Court from the case diary contrary to law and the bare minimal procedural fairness expected of both the prosecution as well as the Court in criminal trial at the height of it, all this most incriminating piece of evidence has not even been put to the accused.

While going through the examination of the accused as conducted by the trial Court in compliance of Section 313 Code of Criminal Procedure one cannot help observing that it is far from satisfactory. Question No. 1 as noted below itself is an indication of perfunctory nature:

Question No. 1. Charge and evidence is there against you that on 24.8.92 at about 9.20 A.M. in the room occupied by the deceased Sudhir Singh situated in front of ONGC, CTF Office at Geleky Athkhel committed murder by intern onally causing the death of Sudhir Singh by means of a dao.

Framing of question is itself quite puzzling. Of course, the accused of his answer denied, but the question Nos. 3 and 4 are again reproduced just to get an idea how perfunctory the statement of accused u/s 313 Code of Criminal Procedure has been held:

Question No. 3 : P.W. Manik Hazarika and P.W. Bhim Kanta Sarma who were also declared hostile but he stated before the I.O. that the police recovered the dao on being taken out and produced by you. From the place it was kept concealed buried and one side of the dao was bent and its handle was wrapped with rubber and cane. What have you got to say?

Question No. 4. That P.W. Sushil Agarwalla though declared hostile before the I.O. that on 24.8.92 at about 9.20 A.M. he has seen you coming out of the deceased room armed with a dao shouting "I have killed Singh" and then you flat on floor. What have you got to say?

In contrast, a mere reading of Section 313 Code of Criminal Procedure would reveal its object:

(i) The object of questioning an accused person by the Court is to give him an opportunity of explaining the circumstances that appear against him in the evidence. If for example, some article is found in the accused''s house which points in an emphatic manner to the accused''s responsibility for the crime, he should be given an opportunity of offering an explanation of the presence of the article in his house.

(ii) Where the evidence against an accused consists of circumstantial evidence only, it is of the utmost importance that the various circumstances which clinch the issue against him should be put to him and an explanation called for from him.

(iii) A duty is cast upon the Courts to question the accused properly and fairly so that the exact case that the accused has to meet is brought home to him in clear words and thereby an opportunity is given to him to explain any point.

In view of the foregoing discussions, the conviction and sentence as recorded by the learned trial Court cannot be allowed to stand, it is liable to be set aside, and accordingly set aside. The fine if paid be refunded to the Appellant and he be set at liberty forthwith.

The appeal is allowed.