Sarala Mandal vs The State Of Assam & Anr.

(M. Zothankhuma, J)

Heard Mr. S. Biswas, learned counsel for the appellant and Mr. K. K. Das, learned Addl. PP, Assam.

The appellant has put to challenge her conviction under Section 302 IPC and the sentence to undergo rigorous imprisonment for life with a fine of Rs.2,000/-, in default, simple imprisonment for another two months, pursuant to the impugned judgment dated 11.08.2023, passed by the learned Sessions Judge, Baksa, Mushalpur in Sessions Case No.189/2022, arising out of Tamulpur P.S. Case No.124/2022.

The brief facts of the case is that FIR dated 21.06.2022 was submitted by PW-2 to the Officer-in-Charge of Tamulpur Police Station, stating that on 20.06.2022 at around 6.30 p.m., the appellant had stabbed his son Ratan Barman in the neck with a knife on Mahindra Nagar Road, killing him instantly, without any reason. Pursuant to the FIR dated 21.06.2022, Tamulpur P.S Case No. 124/2022 under Section 302 IPC was registered.

Consequently, the Investigating Officer (PW-10) started his investigation and after recording the evidence of the witnesses and recovering the weapon, which PW-10 stated, was recovered from the place where the weapon had been kept hidden, charge-sheet was admitted against the appellant, on a prima facie case under Section 302 IPC having been established against the appellant.

The learned Trial Court thereafter framed charges under Section 302 IPC, to which the appellant pleaded not guilty and claimed to be tried.

The learned Trial Court thereafter examined 10 Prosecution Witnesses and 1 Defence Witness (DW-1), who was the appellant herself.

The appellant was then examined under Section 313 Cr.PC and on the learned Trial Court coming to a finding that the appellant had murdered the deceased, punishable under Section 302 IPC, the appellant was convicted and sentenced under Section 302 IPC.

The learned counsel for the appellant submits that a perusal of the evidence adduced before the learned Trial Court shows that the story of the prosecution, regarding the killing of the deceased by the appellant was not believable, inasmuch as, no reason or motive has been attributed to the appellant for killing the deceased. Further, when the appellant has testified that the deceased had tried to rape her and assaulted her, which resulted in the appellant bringing out the knife for self-defence, it could not be said that the appellant was guilty of murdering the deceased.

He further submits that during examination of the appellant under Section 313 Cr.PC, the appellant had again stated that due to the deceased trying to rape the appellant, which led to a scuffle, the appellant's knife hit the neck of the deceased. However, the learned Trial Court has not considered the evidence of the appellant as DW-1, nor has it considered the explanation given by the appellant under Section 313 Cr.PC. If the same was done, there was no question of there being proof of the appellant murdering the deceased.

The learned counsel for the appellant further submits that the testimony of PW-3, who was the alleged eye-witness to the appellant stabbing the neck of the deceased, was contradictory to the statement made by PW-3 under Section 164 Cr.PC. He also submits that there was no recovery of the weapon, on the basis of any discovery statement made by the appellant under Section 27 of the Indian Evidence Act. He also submits that the FIR is silent on many aspects of the prosecution case and as such, the absence of material facts in the FIR vitiates the prosecution case.

He submits that it is not the quantity, but the quality of witnesses and evidence that can either make or break the case of the prosecution. However, in the present case, the evidence of PW-3 and the other prosecution witnesses were not fully trustworthy or free from any kind of blemish. As such, their evidence cannot be relied upon to convict the appellant. In support of his submission, he has relied upon the decision of the Hon’ble Supreme Court in the case of Ramcharan vs. State of MP, reported in (2001) 10 SCC 108.

He also submits that when an accused sets up a defence or offers an explanation, which is quite plausible, during his examination under Section 313 Cr.PC, the accused is not required to prove his defence beyond reasonable doubt, but only by preponderance of probabilities. When a doubt is created by way of preponderance of probability, it cannot be said that the Prosecution has proved the guilt of the appellant beyond reasonable doubt. In support of the above submission, he has relied upon the decision of the Supreme Court in the case of M. Abbas vs. State of Kerala, reported in (2001) 10 SCC 103. The learned counsel for the appellant thus submits the impugned judgment should be set aside and the appellant should be acquitted of the charge framed under Section 302 IPC.

The learned Addl. P.P, on the other hand, submits that PW-3 is the eyewitness to the appellant, stabbing the neck of the deceased with a knife. Further, the evidence of PWs-4 and 5 is to the effect that the appellant had taken the police and witnesses to the place where she had hidden the weapon. On reaching the said place, the appellant had produced the hidden weapon (knife) which was under a jujube tree (Bogori gos). Further, the evidence of PWs- 6, 7 8 & 9 is to the effect that they had seen the deceased lying at the place of occurrence and the appellant riding away on her bicycle. He further submits that the evidence of the appellant as DW-1 shows that the appellant had taken the plea of self-defence with a knife. Similarly, in her explanation under section 313 Cr.P.C, the appellant had again taken the plea of self-defence with a knife. Thus, the fact that the appellant was the one who had stabbed the neck of the victim is an admitted fact. The only issue to be decided is whether the appellant can wriggle out from the charge under section 302 IPC by taking the plea of private defence. He further submits that the evidence of the Doctor (PW-1) proves that the injury on the deceased had led to the death of the deceased and that the same had been caused by a stab injury to the neck of the deceased. He submits that in a case where there is an eyewitness to the crime, motive loses it’s significance. He further submits that even though the learned Trial Court has discarded the recovery of the weapon, on being allegedly led by the appellant, the same cannot be said to be fatal to the case of the Prosecution evidence. This is due to the fact that in the case of Ghanshyam Mandal and Ors. Vs. The State of Bihar (Now Jharkhand), reported in 2026 SCC OnLine SC 307, the Supreme Court has held that non-recovery of weapons cannot be considered fatal to the case of the Prosecution, if there is consistent medical and ocular evidence. He thus submits that when the evidence of the sole eyewitness, i.e, PW-3, has not been shaken during her testimony before the learned Trial Court, there was no reason to interfere with the impugned judgment of the learned Trial Court.

We have heard the learned counsels for the parties.

The evidence of PW-1, who is the Doctor who conducted post-mortem examination over the deceased, is to the effect that there was an incised stab wound in front of the neck, below 3 (cm) thyroid cartilage of size 2cm x 5 cm (depth). On dissection of the bruise, it was found that the larynx and trachea was perforated with bleeding into the larynx and mouth. Nerve and muscles had been incised. In the opinion of PW-1, the cause of death was due to shock and haemorrhage, following the stab injury in the front of the neck, leading to perforation of trachea and injuring right laryngeal nerve adjacent muscle and blood vessels. PW-1 further stated that the nerve injuries were sufficient to cause death of a person in the ordinary course.

The evidence of PW-2, who is the informant, is to the effect that he had lodged the FIR, as the appellant had killed his son, though he did not see the incident.

The evidence of PW-3 is to the effect that the deceased was her nephew. PW-3 stated that about 3 months back, at about 5:00 pm, while she and her nephew were going on a cycle to bring her husband, who was left in the market, they saw the appellant who was returning from the market on a cycle. PW-3 then asked the appellant, as to why she did not bring her husband, as the appellant had made him drink alcohol. The appellant then slapped PW-3 and abused her with filthy language. The deceased nephew protested against the same, which led to the appellant threatening the deceased nephew that she would slap him. The appellant then approached them to some extent and returned. The appellant then called the deceased towards her and when the deceased went near her, the appellant brought out a knife from inside her blouse and stabbed the neck of the deceased. Thereafter, the appellant fled on her bicycle. PW-3 stated that she then pressed the neck of the deceased and cried for help. Hearing her cry, some nearby people gathered. PW-3 was then soaked with blood and the deceased died on the spot. The police later came and took the dead body away. Post-mortem examination was also held by a Doctor and after the dead body was handed over, they performed the last rites. PW-3 stated that the father of the deceased had lodged the FIR. PW-3 further stated that she was produced in the Court, where the Magistrate recorded her statement.

In her cross-examination, PW-3 stated that PWs-6, 7, 8, 9 and one Kartik Mandal, whose houses were adjacent to her house, came to the place of occurrence, though they had not seen the incident of stabbing. She also stated that the occurrence took place at about 6:30 p.m and that it was getting dark. PW-3 also denied the suggestion that the deceased had pulled the appellant down from her bicycle with an intention to rape her, due to which a scuffle took place and the appellant brought out the knife in self-defence, which landed on the neck of the deceased.

The evidence of PWs-4, 5 & 6 is to the effect that they had gone with the appellant and the police to the place where the appellant had hidden her knife and recovered the same, which was handed over to the police.

The evidence of PWs-6, 7, 8 and 9 is to the effect that they had seen the deceased lying on the side of the road, at the place of occurrence and they had also seen the appellant riding away on her cycle.

The evidence of PW-10, who is the Investigating Officer, is to the effect that he conducted the investigation and that the appellant had confessed before the police that she had killed the deceased. Further, the appellant had led the police to the place where the weapon had been hidden and the same was recovered therefrom.

The evidence of the appellant as DW-1, is to the effect that the deceased tried to rape her and assaulted her due to which her head was fractured. She accordingly brought out her knife in self-defence. She also stated that the deceased hit her again on her head due to which she fell down and became senseless. Then the police took her to the Nagrijuli Hospital and thereafter, took her to the GMCH for treatment.

In her cross-examination, the appellant denied the suggestion that PW-3 was present at the place of occurrence, at the time of the incident along with the deceased. She also denied the suggestion that PW-3 had asked her about PW-3's husband. The appellant stated that on the day of the incident, the folding knife with which she used to cut betel nuts was in her hand. She denied the suggestion that the police took her to the place of occurrence to find the knife. The appellant also stated as follows:-

The Supreme Court in the case of Ghanshyam Mandal (supra) has made observations with regard to other decisions of the Supreme Court, wherein it had been held that non-recovery of weapons cannot be considered fatal to the case of the Prosecution, if there is consistent medical and ocular evidence, i.e, non-recovery of the murder weapon does not materially effect the case of the Prosecution, where there is unimpeachable oral evidence corroborated by medical evidence.

In the case of Darbara Singh (supra), the Supreme Court has held that motive has great significance in a case involving circumstantial evidence, but where direct evidence is available, which is worth relying upon, motive loses it’s significance. It further held that motive in criminal cases based solely on the positive, clear, cogent and reliable ocular testimony of witnesses is not at all relevant. In such a fact situation, the mere absence of a strong motive to commit the crime, cannot be of any assistance to the accused.

In the present case, the fact that the appellant had a knife and that the deceased had died from a knife wound to the neck is clear. The only thing that needs to be proved beyond reasonable doubt is whether there was an eyewitness to the incident. Though PW-3 has stated that she was an eyewitness to the crime, the appellant in her cross-examination as DW-1 has denied the suggestion that PW-3 was present along with the deceased at the place of occurrence and at the time of the incident. DW-1 stated that while she was returning home after selling betel nuts, the deceased tried to rape her and assaulted her due to which her head was fractured. Thereafter she brought out the knife and when the deceased hit her again on her head, she fell down and became senseless. The above statement made by DW-1 in her testimony is contradictory to her Section 161 Cr.P.C statement, wherein she has stated that she met the deceased and PW-3 while returning home. As the deceased tried to outrage her modesty by touching her breast and using filthy language, she took out her knife and swung it to scare him away. Unfortunately, the knife hit his throat. She thereafter threw away the knife and ran away from the place of occurrence.

On considering the fact that the incident had occurred between 5:00 p.m to 6.30 p.m in the month of June, on a road going towards the market, where darkness would have fallen only after 7:00 p.m, it is highly unlikely for anyone to have attempted rape on a road used by villagers.

In the case of M. Abbas (supra) Supra, the Supreme Court has held that where an accused sets up a defence or offers an explanation, he is not required to prove his defence beyond a reasonable doubt, but only by preponderance of probabilities. Though the appellant has tried to raise a doubt, by trying to paint a scenario that she was exercising her right to private defence against the attempt to rape her by the deceased, we are unable to accept the explanation, as the same does not appear to be plausible, as darkness had not yet fallen on the road leading to the market. When we read the evidence of PW-3, who is the eyewitness to the crime in question, we find that the suggestion put to PW-3 during her cross-examination, is that she did not see the incident, which PW-3 denied. The presence of PW-3 at the place of occurrence is however proved by the evidence of PW Nos.7, 8 & 9, who stated that they had heard PW-3 raising a hue and cry on the road and on going to the place of occurrence, they saw the appellant leaving on her cycle, while the deceased was lying on the side of the road, bleeding profusely from the neck. The evidence of PW-7, PW-8 and PW-9, with regard to the presence of PW-3 at the place of occurrence has not been contradicted or shaken. As such, the fact that the PW-3 was at the place of occurrence and at the time of the incident is proved by the Prosecution.

With regard to the stand taken by the appellant’s counsel that the FIR was silent on many facts in relation to the death of the deceased, it is settled law that an FIR is not an encyclopedia of facts. FIR is only the information, which gives rise to an investigation and on the basis of which facts pertaining to an alleged crime is initiated, whereupon other facts sometimes come to light.

With regard to the submission made by the learned counsel for the appellant that it is not the quantity but the quality of witnesses and evidence that can either make or break the case of the Prosecution, the Supreme Court in the case of Narendrasinh Keshubhai Zala vs. State Gujarat (Criminal Appeal No.1179/2012) has held that it is the duty of the Prosecution to prove that the testimonies of the witnesses that it seeks to rely upon, are of sterling quality, i.e. fully trustworthy and absolutely free from any kind of blemish. In the present case, there is nothing to show that the testimony of PW-3 is not trustworthy or that it is not free from blemish. Though, there is only one single eyewitness in the present case, the Supreme Court in the case of Anil Phukan vs. State of Assam, reported in (1993) 3 SCC 282 has held that conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence, which says to the contrary, provided the sole eyewitness passes the test of reliability.

The explanation given by the appellant under Section 313 Cr.P.C is to the effect that her knife had hit the neck of the deceased, when the deceased had tried to rape her on the road. The appellant further stated in her statement made under Section 313 Cr.P.C that PW-3 was not with the deceased, at the relevant point of time at the place of occurrence. As stated in the foregoing paragraphs, the presence of PW-3 at the place of occurrence is proved by the evidence of PW Nos.7, 8 & 9.

The above being said evidence of PW-6, on the other hand is that he had heard PW-3 shouting “Sarala killed Ratan Barman”, due to which PW-6 went to the place of occurrence and saw the appellant leaving in the place of occurrence on her cycle, while the deceased was lying on the side of the road bleeding profusely from his neck.

In his cross-examination, PW-6 was confronted with his testimony given during his examination-in-chief with a question that he had not made any previous statement before the Police stating that he had heard PW-3 shouting “Sarala killed Ratan Barman”.

The Investigating Officer (PW-10) in his cross-examination has contradicted the testimony of PW-6, when he said in his cross-examination as follows :

Thus, though the testimony of PW-6 is contradicted vis-à-vis her statement made under Section 161 Cr.P.C, the evidence of PW Nos.3, 7, 8 & 9 proves the fact that the appellant killed the deceased, with the stab wound made on a vital part of the body.

In view of the above reasons, wherein PW-3 was the eyewitness to the crime in question, we find that the Prosecution has been able to prove the guilt of the appellant under Section 302 IPC beyond reasonable doubt. Accordingly, we do not find any ground to interfere with the impugned judgment dated 11.08.2023 passed by the learned Sessions Judge, Baksa, Mushalpur in Sessions Case No.189/2022.

The appeal is accordingly dismissed.

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