Rameswar Kalita vs State of Assam

V.D. Gyani, J.—The Appellant stands convicted u/s 302 IPC and sentenced to undergo imprisonment for the life with fine of Rs. 1,000/- or in default of payment of fine to undergo 2 mouths R.I. by Sessions Judge, Nalbari in Sessions Case No. 24 (N)/89 vide judgment dated 6.5.94.

Prosecution case stated in brief was that on the eve of Bhogali Bihu Bidai, a cultural festival was organized in the village where the deceased and some of the prosecution witnesses were also present. It was around 10.00 P.M. of the 30th April, 1987 that the accused is alleged to have stabbed Basistha with a dagger resulting in incised perforated wound on the left abdominal side running perpendicular, i.e. vertical extending from epigastric to unfilical rigor region. The omentum was seen coming out of the wound. Immediately on coming to know of the incident, Dilip Sarma, P.W. 4 the cousin of the deceased lodged an ejahar, Ext. 1 at police station, Nalbari on the basis of which a case u/s 302 IPC was registered and taken under investigation. Injured Basistha was rushed to civil hospital, Nalbari but he breathed his last on way to hospital. On completion of usual investigation, such as, visiting the spot sending the dead body for post-mortem examination after inquest and recorded the statement of the witnesses, the accused was charged and tried for the above offence. Prosecution examined, as many as 10 witnesses to prove the charge. No specific defence was taken by the accused although he had claimed to be innocent, in reply to every question that was put to him in his examination u/s 313 Code of Criminal Procedure. The trial Court found him guilty of the offence charged and convicted and sentenced him as already noted above. Hence this appeal.

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

(1) that the dying declaration relied upon by the trial court is not worthy of reliance inasmuch as it has not been fairly established by the prosecution and the witnesses examined are all close relations of the deceased although other independent witnesses were admittedly available to the prosecution;

(2) the extxa-judicial confession allegedly made by the accused to his elder brothers can not be said to have been duly proved without examining either of them and even if it be so, as testified by P.W. 3 it cannot be acted upon for passing an order of conviction for a serious charge like murder;

(3) non-examination of the investigating officer is fatal to the prosecution case.

Learned Public Prosecutor, Mr. Goswami, appearing for the Respondent State, on the other hand, maintained that the dying declaration as relied upon by the trial court is duly proved, it is free from all infirmities and the conviction as recorded does not call for any interference at this appellate stage.

It is agreed on both hands that there is no eye witness to the occurrence. It is further agreed as has also been noted by the trial court in paragraph 10 of the impugned judgment that the prosecution case hinges on the dying declaration made by injured Basistha and the extra judicial confession said to have been made by the accused to his brothers. There is no denying the fact that the dying declaration if found and accepted to be true, naturally conviction can be based on such dying declaration even without corroporation provided of course it is found to be truthful, reliable, coherent and consistent. Seeking corroboration of such a dying declaration is not a requirement of law. It is only a dictate of prudence that the Court looks for some corroboration to a dying declaration in case of any irregularities or infirmities are pointed out in the dying declaration. In the instant case, the trial court has found it as a fact that the dying declaration made by Basistha and as proved by P.Ws. 1, 3, 4 and 6, needs no corroboration. It is the evidence of these witnesses on which the fate of this appeal hinges.

The first criticism made by the learned Counsel is that the prosecution has not choosen to examine any independent witnesses. It is not a case where such independent witnesses were not available. Referring to the evidence of P.W. 1 who has named, as many as, five other persons (Aurobinda, Bhabesh, Anil, Kumar and Mukul) along with many others as present at the time of making the dying declaration, learned Counsel pointed out that out of the above named persons who were present, Kumud and Anil are listed witnesses but they have not been examined by the prosecution. Similarly, P.W. 3 has also named Anil, Goutam and Dinesh as present in the green room but they have not been examined by the prosecution.

It is the prosecution case that the extra judicial confession was made by the accused to his elder brothers Surath and Niranjan, but none of them have been examined and the trial court has adopted a curious line of reasoning that "Niranjan and Suroth were the brothers of the deceased. So it is quite natural that those persons, if examined by I.O. in course of investigation and charge-sheeted them as witnesses there is every possibility on the part these witnesses of not telling the truth". There is no justification for such a presumptive approach on the part of the learned trial Judge. It is not even the stated case of the I.O. that he did not examine Surath and Niranjan during investigation on the apprehended ground that they would not tell the truth. It is the prosecution case that the extra-judicial confession was made to the brothers. It is all together a different thing whether they would support the prosecution case at the trial. There are legal means available to the prosecutor to get the truth from the mouth of such witnesses. They could well have been declared hostile or permission from the court could have been sought for putting leading question in the nature of cross-examination as contemplated by Section 145 of the Evidence Act, that is hardly of any justification for not examining these witnesses even during investigation, let alone their examination before the Court. This presumptive approach on the part of a trial judge, is wholly uncalled for. To presume that a witness would not tell the truth, it was for the I.O. to have explained. The explanation does not come from the I.O. and the court tries to find out one for which there is no basis available on record. It may incidentally be noted that one of the witnesses examined by the prosecution, Atul P.W. 2 was infact declared hostile. Suroth and Niranjan could also have been subjected to the same course available under the law if at all they have not supported the prosecution case but to start with the presumption that naturally they would not have told the truth to the I.O. has absolutely no legal support.

The evidence of P.W. 1, 3, 4 and 6 needs to be closely scrutinised to decide the reliability and acceptability of the dying declaration. In this context learned Counsel appearing for the Appellant invited attention to a vital omission in the first information report, lodged by P.W. 4 Dilip, who was present in the green room. It was he who rushed out of the green room on being informed by "few boys" that Rameswar had stabbed Basistha. None of these ''few boys'' have either been named or identified, muchless examined by the prosecution, and the only person who could have disclosed the names or explain the non-disclosure of the names of these ''few boys'' was the Investigating Officer and the prosecution has not choosen to examine him. The Offiecr-in-Charge of the Police Station, P.W. 9 has merely stated that he Collected the Case diary from Sub-Inspector, J.N. Singh. On perusal of the Diary he completed the investigation and submitted charge-sheet after collecting the report from the Forensic Science Laboratory. This attitude and approach on the part of the prosecuting agency in not examining the Police Officer, who actually conducted the investigation apart from running the risk of adverse comments, needs to be deprecated in a serious case like murder. The prosecution can only ill-afford to dispense with the examination of the investigating officer. P.W. 4 has in fact been confronted with the omission in the FIR and his previous statement recorded u/s 161 Code of Criminal Procedure. The question arises, who would prove this omissions. An accused is (sic)led to a fair trial. By keeping back the I.0., the opportunity to prove these submissions have been denied to the accused and to that extent it is a denial of a fair trial as well. The learned judge of the trial court seems to be quite oblivious of thus aspect of the matter while considering the reliability of the dying declaration said to have been made by the injured Basistha to P.W. 4. Had it been the case, as claimed by P.W. 4 there was no earthly reason for him to have omitted to mention the making of a dying declaration in the ejahar, Ext. 1 as lodged by him. There are several other facts and it is fairly a long written ejahar submitted by P.W. 4 to the police. The most important fact of the event was the dying declaration made by Basistha and that is missing from the FIR. The importance of the earliest version of the prosecution case can not be overstated as has been pointed out by the Privy Council in AIR 1945 18 (Privy Council) One of the object behind lodging prompt FIR is to prevent its embelishment and this embelishment has in fact occurred. In the instant case, so far as the P.W. 4 is concerned, this infirmity has not occurred. Therefore, no question of adverting to it. It is not only the FIR, even its previous statement suffers from a vital omission which can not be overlooked or brushed aside. The fact that few boys came and informed that Rameswar had slabbed Basistha, is itself missing from its previous statement as recorded by the I.O. u/s 161 Code of Criminal Procedure and the I.O. has not been examined. Dealing with the evidence of P.W. 4, the learned trial Judge referring to his cross examination has observed:

Although this witness was cross-examined at length by defence, but nothing could be elicited from his mouth destroying the veracity of his evidence given in chief as to main particular of the case. On the other hand defence has confirmed his evidence given in chief by pulling question to him directly about the occurrence which he replied in affirmative.

The making of these omissions as pointed out above in the evidence of P.W. 4 has not at all been taken into account by the trial court. It would had been natural on the part of this witness, if he had in fact been informed by few boys that Rameswar had stabbed Basistha, to state or mention these facts to the police either while lodging the ejahar or making a statement u/s 161 Code of Criminal Procedure when his memory was still quite fresh, it was just within few hours of the incident that he was making the statements, it is not the prosecution case not even suggested to the scribe of the FIR P.W. 5 that he omitted to include or incorporate certain facts in the ejahar, Ext. 1, as narrated by P.W. 4 Dilip. In fact he is emphatic in his cross-examination that he did not omit anything that was forwarded to him by Dilip. In such a situation, the omissions as regards the making of a dying declaration by injured Basistha and the information claimed to have been received by P.W. 4 from few boys itself become doubtful and can not be accepted without a grain of salt unless corroborated by some other independent reliable sources. The other witness relied upon by the learned trial Judge is P.W. 6, who was one of the spectators in the cultural show that was going on. According to him it was around 8.30 in the night that Basistha came in a run and fell in front of his shop. All that he has testified is while falling he shouted thrice the name- "Rameswar, Rameswar, Rameswar". It is not his case that he had put any question to Basistha and in reply to that question he shouted the name ''Rameswar''. Taken on its face value, it would be too much to read that Basistha was shouting the name of the assailant unless it was the prosecution case suggesting that on being asked by the witness, P.W. 6, as to who injured him, the injured shouted the name of Rameswar but it is not the claim of the witness nor the prosecution case. The learned trial judge has merely gone by the fact that these witnesses had any animosity against the accused to falsely implicate him in the instant case. This aspect of the matter will be presently dealt with. For the moment, the question is, taking the evidence as it is, does it point to the accused as the assailant. The witness was in the midst of a show and suddenly Basistha came and fell before him shouting the name of Rameswar. Looking to the unnaturality of the conduct of this witness, who admits that he did not ask Basistha anything, is it natural human conduct? P.W. 6 claims to have assumed an indifferent, neutral posture, so much so, he did not bother as to see whether injured was being taken. This unnaturality of conduct of a witness, who felt supplement and yet not putting him a single question renders his testimony unreliable. It is always the element of enemity that detracts a witness from coming out with the truth. The considerations and factors vary from witness to witness and case to case. P.W. 1 is the uncle of the deceased, according to him it was around 9.30 while returning after a stall that he stopped at the shop for purchasing Bidi and he purchased a bundle of Bidi from that shop. As he was about to return, Basistha came there in a state of despair, it is the same shop run by Hiteswar, P.W. 6. It is significant to note that P.W. 6 does not referred at all in his evidence to Kashinath, P.W. 1. On the other hand, he (P.W. 6) is categorical in his statement that there was no customer in his shop when Basistha came and fell on the ground and shouting the name of Rameswar. It is the claim of P.W. 1 that he was at the shop of Hiteswar, P.W. 6, purchasing a bundle of Bidi when Basistha came and fell down. It was P.W. 1, who lifted him and clubbed him and on being asked by the uncle P.W. 1, Basistha told him Rameswar Kalita has stabbed me with a dagger." And he repeated the statement before him about 8 to 10 times. If such is the fact as stated by P.W. 1, P.W. 6 who was running the shop would not have omitted to mention the presence of Kashinath, the uncle of the injured, the question put by him and the reply given.

Appreciation of evidence is nothing but the yard-stick of human probabilities to the statements made by witnesses. A fact taking place in presence of two witnesses, P.W. 1 and 6, P.W. 6 does not at all referred P.W. 1 as present, which he, in the ordinary course of human conduct, ought to have mentioned or stated. Similarly, P.W. 1, except for the reference that Hiteswar had set up a Bidi, beetle nut shop, does not at all referred to him Hitesh in any other context, and more importantly the shouting of the name of Rameswar by injured Basistha. It would not be out of place at this stage to note that the informant Dilip is the son of Kashinaih, P.W. 1 that the ejahar, Ext. 1 was lodged on the basis of information gathered from him. The omission in the FIR, Ext. 1, when viewed in its totality with reference to the omission by P.W. 6 to refer to the presence of P.W. 1, assumes importance whether in fact P.W. 1, who, as claimed by him was returning from a stall was in fact present at the shop and whether a dying declaration as claimed by him was made to him. If that is so, there was no reason for the omission in the ejahar as it was written after gathering information from him. He would not have omitted to refer to the dying declaration which was the most important fact and the only important fact to be informed.

According to P.W. 3, when he went out he found Basistha from the green room where he came to know about the incident. He found Basistha lying in a pool of blood in the house of one Jogesh Das, who has not been examined by the prosecution. It is claimed that Basistha told him there (at the house of Jogesh) that Rameswar had stabbed him. P.W. 6 has stated dial he did not bother to know as to whether injured was taken. How and who brought Basistha to the house of Jogesh is not clear from the record. P.W. 1 has testified to the effect that from the shop injured Basistha was taken to the house of Jogesh Das. Although in the instant case, the trail of blood or blood marks, being present at different places has lost much of its significance but had it been proved a fact, it would have certainly helped in determining the place or the injured Basistha at false. The de-soiled earth, whether it was at the shop or the nearby place where the festival was going on, and blood marks would have helped in determining the place of occurrence but there again the prosecution has failed in adducing any evidence whatsoever. This inherent infirmities on the point of a dying declaration which have escaped notice of the trial court, it would be extremely hazardous to pass an order of conviction in a serious case like murder solely on the basis of a verbal dying declaration. Now coming to the question of extra-judicial confession, here again it would be wrong to approach an extra-judicial confession with a presumption that it is a weak type of evidence. If otherwise proved to be voluntary and truthful, even extra-judicial confession made by an accused can sustain a conviction for offence u/s 302 IPC. In the instant case, the extra-judicial confession is said to have been made by the accused to his elder brothers. As discussed above, the prosecution instead of examining the elder brothers has choosen to examine one-Mukul Sarma, who overheard the alleged confession. It is through him that the extra-judicial confession is sought to be proved. The rule of best evidence is discarded on flimsy grounds by the trial court. There could have been no better witness than Niranjan or Suroth to prove the extra-judicial confession. It sounds unnatural that an accused making an extra-judicial confession would make such a confession to his brodiers'' presence and if at all he intended to make - he could have taken them aside to seclusion. The inherent unnaturality in the evidence of P.W. 3 that it was in the midst of many Ors. who were present in the extra-judicial confession so made by the accused makes it difficult to be accepted. An accused does not beat a drum about the commission of (sic) crime made by him even if made out it is by reposing faith and confidence that the divulges the secret. It is seldom ever trumpeted in presence of many Ors. . The learned trial Judge has failed to notice this inherent infirmity in the making of an extra-judicial confession apart from the omission on the part of the prosecution to (sic)mine the persons to whom the confession was made. It is for this reason that the confession said to have been made by the accused Rameswar can not be acted upon and should have excluded from consideration by the trial court.

Going through the impugned judgment, it would be noticed that the trial judge has taken pains to state the law on both points, the law as enunciated by the Supreme Court on both the points, but it is in the appreciation of evidence that he (sic) faultered with. The non-examination of the I.O. in such a case, the omission in the FIR about the fact of a dying declaration having been made and the tall claim made by P.W. 1 that it was at his instance that the FIR was drafted are factors which (sic)tate against the acceptability of the dying declaration, the sole basis of conviction.

For the foregoing reasons, this appeal deserves to be allowed, it is accordingly allowed. The conviction and sentence as recorded by the trial court are able to be set aside, they are accordingly set aside. Fine, if paid or deposited be (sic)nded to the Appellant. He is acquitted of the charge framed against him. He be at liberty forthwith.