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Judgment
This criminal appeal is directed against the judgment dated 22-12-2014 passed by the learned Sessions Judge, Unakoti District, Kailashahar in Sessions Trial No. 14(NT/K) of 2013 convicting the appellant U/s 302/341 IPC and sentencing him to undergo rigorous imprisonment for life with a fine of Rs.10,000/- for the offence U/s 302 IPC and to undergo simple imprisonment of one month for the offence U/s 341 IPC, which are to run concurrently.
The case of the prosecution is that on 10-12-2011 at about 6.30 PM, when the informant and her husband, Matilal Das (the deceased) were on their way back home after selling vegetables and marketing for household articles in the local Jagannathpur market, the appellant suddenly appeared on the road and started abusing her husband by using filthy language. At that time, Smt. Minati Das (PW-10), who was with the informant, came from behind and asked the appellant not to abuse the deceased. To which, the appellant is said to reply, "I will take revenge for the Meghalaya incident" and then walked away, but only to return with a crowbar in his hand, accompanied by 3/4 more persons. These persons caught hold of her husband while the appellant hit the deceased on different parts of his head with the crowbar he was holding. As a result of such attacks, her husband collapsed on the ground unconscious. With the help of Minati Das (PW-10), the deceased was taken to the house of Kanai Das which was located near the place of occurrence whereafter they poured water on him and took him to RGM Hospital at Kailashahar by an ambulance where he was declared dead by the doctor. On the following day, at about 1205 hours, the informant lodged the FIR with Kailashahar Police Station, which registered a regular case, i.e. Kailashahar PS Case No. 184/11 U/s 341/302/34 IPC. The police then swung into investigation and, after completing the investigation, submitted the charge sheet against the appellant and Amrit Rabidas to face the trial for commission of the offences punishable U/s 341/302/34 IPC.
On commitment, the learned Sessions Judge, having found a prima facie case, framed the charge against the appellant and the said Amrit Rabidas U/s 341/302/34 IPC, to which both of them pleaded not guilty and claimed to be tried. However, in the course of trial, the said Amrit Rabidas died and the proceedings against him were dropped. In the course of trial, the prosecution examined seventeen witnesses to prove the charges against the appellant and exhibited a number of documents and articles to bring home the charge against the appellant. On the conclusion of the trial, the trial court passed the impugned judgment of conviction and sentence.
It may be noted that the trial court formulated four points for discussion and decision:
Whether there has been deliberate and unexplained delay in lodging ejahar which paved the way for implicating the accused person?
Whether the present FIR is hit by Section 162 CrPC?
Whether PW-9, PW-10 and PW-11 are believable witnesses and had the opportunity to identify the accused person?
Whether the prosecution has proved the motive of the accused, as alleged?
At this stage, it may be noted that the co-accused, namely, Amrit Rabidas died in the course of trial whereupon the case was dropped against him vide the order dated 10-1-2014 passed by the trial court. On point No. 1, the trial court accepted the explanation of delay proffered by the informant that on the night of occurrence, she was exhausted and nervous when she returned home at 12 AM on that night. According to the trial court, the very circumstances of that fateful night provided an implied explanation for not lodging the FIR on that night itself. In this context, para 12 of the impugned judgment may be reproduced:
"12. The FIR was lodged at 1205 hours on the following day. From Ext. 4, the printed form of FIR, I get that the distance of the house of the informant from Kailashahar PS is 10 Km. Thus, PW 9, who lost her husband in the previous night, was not expected to come to Police Station in the early morning keeping in mind that the delay in lodging the FIR may pave way for the assailants of her husband to get rid of the charge. Further, PW 9 had to approach PW 6, Advocate''s Clerk to write a case for her and then PW 9 went to the police station and submitted the FIR. Therefore, the delay caused in the following morning, also finds expressed and implied explanation from the circumstance, which is reasonable and acceptable considering the entirety of the case and the socio-economic standing of PW-9."
Delay in setting the law into motion by lodging of complaint and registration of first information report is normally viewed by courts with suspicion because there is possibility of concoction and embellishment of the occurrence. So it becomes necessary for the prosecution to satisfactorily explain the delay. The object of insisting upon a prompt lodging of the report is to obtain early information not only regarding the assailants but also about the part played by the accused, the nature of the incident and the names of witnesses.- See Gajanan Dashrath Kharate v. State of Maharashtra, (2016) 4 SCC 604. In the case at hand, the prosecution has satisfactorily explained the delay in lodging the complaint. In our opinion, the trial court has correctly held that the prosecution has satisfactorily explained the delay in lodging the complaint; the prosecution case cannot be doubted on the small delay between the time of occurrence and in registration of the first information report. In the view that we have taken, the following decisions: Satguru Singh v. State of Punjab, AIR 1995 SC 2449; Ganesh Bhavan Patel and another v. State of Maharashtra, AIR 1979 SC 135 and Narayana Reddy alias Babu v. State of Karnataka, 2017 Cri LJ 745 cited by the learned legal aid counsel cannot come to the rescue of the appellant.
Coming now to the second point as to whether the FIR is hit by Section 162 CrPC inasmuch as PW-14 in his cross-examination stated that on the night of the occurrence, he had gone to Kailshahar Police Station and lodged the information, we have carefully examined his statement against the backdrop of the statement of the IO (PW-16), who in cross flatly denied the suggestion that on the night of the occurrence, Gopika Das (PW-14) lodged any information with Kailashahar Police Station. In the teeth of denial by PW-16, it is for the defence to prove that such information was indeed given by PW-14. Moreover, the defence did not care to show the type of information PW-14 lodged with the police or whether such information disclosed the commission of any cognizable offence or offences in that report. In that view of the matter, it is difficult to hold that the FIR is hit by Section 162 CrPC.
This then takes to the meat of the matter: whether the prosecution has proved the guilt of the appellant to the charge framed against him to the hilt? It is the contention of Mr. R. Datta, the learned legal aid counsel for the appellant, that except for the evidence of the informant (PW-9), who is the wife of the deceased and, therefore, an interested witness, no other person actually saw the incident; PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 and PW-8 are neighbours, who are somehow related to the deceased in one way or another also did not witness the assault on the deceased. He, therefore, contends that it is not prudent to convict the appellant on the basis of the uncorroborated statement of PW-9. On the other hand, Mr. S. Sarkar, the learned Public Prosecutor, supports the impugned judgment and submits that no interference is called for. He, particularly, draws our attention to the statements of PW-1, PW-2, PW-3, PW-12 and PW-13, who, according to him, are res gestae witnesses and their statements alone are sufficient to bring home the charge against the appellant. In any case, contends the learned Public Prosecutor, the statements of these res gestae witnesses fully corroborated the version of PW-9 in proving the case of the prosecution beyond reasonable doubt. He, therefore, strenuously urges this Court to dismiss the appeal, which is totally devoid of merits. He places strong reliance on the following decision to fortify his submissions: State of MP v. Ramesh & another, (2011) 4 SCC 786; Rajput Jabbar Singh Malaji v. State of Gujarat, (2011) 6 SCC 308 and Sukhar v. State of UP, (1999) 9 SCC 507.
The most important evidence is the evidence of PW-9, the wife of the deceased. In her evidence, she testified that both the appellant and the co-accused were known to her by face as they belonged to the same locality. According to her, in the evening of 10-12-2011, she along with the deceased and their neighbour, Minati (PW-10) and her daughter, Jhuma (PW-11) were returning home from Jagannathpur Bazar when one person appeared near a bridge and started chatting with the deceased and PW-10, PW-11 and herself were following the deceased from a distance. All of a sudden, the deceased and the said person started talking in a loud voice and when she intervened, the said person walked away. On her query, the deceased had apprised her that when he was working with that person in Meghalaya, he was caught for stealing and his name is Indrajit Rabidas (the appellant herein), who wanted to take revenge against the deceased over that issue. Thereafter, they proceeded further, but near the Anganwadi School, the appellant accompanied by another person, whose name she subsequently came to know as Amrit, who happened to be the younger brother of the appellant, appeared. The said Amrit threw a brick at the deceased while the appellant hit him on his head by an iron rod whereupon he collapsed on the ground. She then raised alarm, but both the appellant and the co-accused made a quick exit. By this time, one Sanjoy, PW-3 and a few other persons appeared and shifted the deceased to the house of Kanai Lal Rabidas and poured water on his head. The deceased became unconscious. She then narrated the incident to Sanjoy, PW-3, Kanai and others. She further testified that as it was a moonlit night, she had no difficulty in identifying the appellant and the co-accused and on reaching the Hospital, the deceased was declared dead by the doctor. The dead body was not handed over immediately for conducting a post mortem examination. She came home in the night and the following morning went to the Police Station where she lodged the FIR. She stated that as she was extremely nervous and exhausted on the night of the occurrence, she did not go to the police station for lodging the ejahar. The cross-examination of this witness does not bring out anything to discredit her testimony. On the contrary, we found PW-9 to be a natural witness, who was giving a truthful account of what had happened to her husband at the hands of the appellant and the co-accused.
That apart, PW-10, who was with PW-9, the deceased and PW-11 has corroborated the testimony of PW-9 in material particulars, particularly, on the appearance of the appellant near the said bridge and their altercation; on his threat that he would take revenge; on apprising PW-9 by the deceased that he had worked with the appellant in Meghalaya about 10 years back and of the allegation of theft against the appellant. PW-10 further testified that as they started for their houses, the appellant and the co- accused, who were known to her by face, re-surfaced and the appellant delivered a blow on the head of the deceased with iron rod and, as a result, he fell to the ground. On their cry for help, Pabitra Das and Sanjoy Das came and shifted the deceased to the house of Kanailal Rabidas; the deceased was unconscious and was shifted to Hospital by an ambulance, but died on the way. She also deposed that some villagers inquired from her the names of the assailants and she accordingly divulged the names of the deceased and the co-accused. On careful examination of the examination-in-chief of this witness and her cross-examination in juxtaposition, we found her evidence to be unimpeachable and wholly reliable. Another natural witness is PW-11, who was with the deceased, PW-9 and PW-10 at the time of the incident. She fully corroborated the statements of PW-9 and PW-10. She testified that she saw the appellant hitting the deceased on his head with an iron rod, while the co-accused threw brick at him whereafter they ran away. She also deposed as to what happened thereafter in the manner deposed by PW-9 and PW-10. Her cross-examination does not elicit anything falsify her testimony. In our judgment, the statements of PW-9, PW-10 and PW-11 are sufficient to bring home the charge against the appellant.
As a matter of abundant caution, we may also refer to the statements of PW-3, who along with one Sanjoy Das (who was not examined) were the first to arrive at the scene of occurrence. According to this witness, on 10-12-11 at around 6.30 PM, when he was unloading bricks from his vehicle at Jaganathpur Telia road, he heard the shrieking sound of women from the direction of Anganwadi locality whereupon he along with Sumanta Rabidas rushed to the scene and found the deceased lying on the lap of PW-9 with bleeding injuries on his head. At that time, local persons such as Kanailal Rabidas, his wife, Saraswati Rabidas and Ramjit Rabidas were present. They shifted the deceased to the house of the said Kanailal Rabidas and poured water on his head, but he was unconscious. He called ambulance from his mobile. He accompanied the deceased to the Hospital where he was declared dead by the attending doctor. He deposed that the wife of the deceased (PW-9) told him at the hospital that due to previous enmity, the appellant assaulted the deceased. PW-12 is the wife of the said Kanailal Rabidas. Though this gentleman was examined as a witness, PW-12 corroborated the statement of PW-9 by deposing that in the evening of 10-12-2011, while her daughter and herself were at home, all of a sudden, they heard the scream of a woman. When they rushed to the scene of occurrence, they found PW-9 crying while her husband was on her lap and was profusely bleeding on his head. They also found PW-10 and PW-11 with PW-9. She further testified that local people also arrived on hearing the halla; that the deceased was taken to their house and he was unconscious. She further testified that the deceased was then taken to hospital and that before he was taken, they asked PW-9 as to how it happened, she replied that the appellant delivered a blow on the head of the deceased with an iron rod and a few more persons were there. In our opinion, the statements made to PW-3 at the hospital and to PW-12 by PW-9 at the place of occurrence are quite contemporaneous, become relevant and admissible as res gestae under Section 6, Evidence Act. Similarly, the statement to that effect by PW-9 to PW-1 and PW-2 at the place of occurrence just after the incident, to PW-2, PW-4, PW-6 and PW-8 at the hospital to that effect are also relevant and admissible under Section 6 of the Evidence Act. Section 6 of the Act provides for and exception to the general rule whereunder hearsay evidence becomes admissible. The law is explained by the Apex Court in Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 in the following manner:
"34. We shall now deal with Section 6 of the Act, which reads as under:
"6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places."
Black''s Law Dictionary defines res gestae as follows:
"(Latin: ''things done'') The events at issue, or other events contemporaneous with them. In evidence law, words and statements about the res gestae are usually admissible under a hearsay exception (such as present sense impression or excited utterance)."
The said evidence thus becomes relevant and admissible as res gestae under Section 6 of the Act.
Section 6 of the Act has an exception to the general rule whereunder hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. ......"
In our judgment, even without placing reliance on the evidence of the above res gestae witnesses also, the direct evidence of PW-9 as corroborated by the evidence of PW-10 and PW-11 are sufficient to prove beyond reasonable doubt the guilt of the appellant with respect to the charge framed against him. True, the weapons of offence, namely, the iron rod by the appellant and the brick used by the co-accused, were not recovered by the police. However, in the light of the overwhelming ocular evidence adduced by PW-9, PW-10 and PW11 as well as the res gestae witnesses such as PW-1, PW-2, PW-3 and PW-8, the defective investigation of the IO cannot otherwise affect the core of the prosecution case, which has a ring of truth. Moreover, recovery of the weapon of offence cannot alone be taken as a ground to exonerate the appellant from the charge, more so, when his involvement in the crime is unfolded in the ocular evidence of the occurrence given by the aforesaid witnesses, whose evidence have not been impeached in any manner in the cross-examination made by the learned counsel for the appellant. The post- mortem report (Exbt.-6) as proved by PW-17, the Medical officer conducting the post mortem examination, shows the death of the deceased was due to respiratory failure due to injury and damage to the vital area of the brain thereby corroborating the evidence of PW-9 that the deceased was hit by an iron rod on his head. The following injuries were detected:
"Lacerated injury of scalp over the left parito occipital area measuring 5 cm x 2 cm x 1/2 cm. One fracture of occipital bone measuring 1 & 1/2 cm in length beneath the tissue of injured side. Extra dural collection of blood clot. Evidence of contusion to the cerebrum and brain stem. Evidence of inflammation of tissues and tissue reaction present. The injuries were ante-mortem. The time of death was 24 hours from the time of PM examination."
In our opinion, this is virtually an open and shut case. We are more than satisfied that the prosecution has proved to the hilt that it was none but the appellant who caused the death of the deceased to settle ancient grudge. The trial court has rightly convicted the appellant, for which our interference is not called for. At this stage, we are tempted to quote the observations of the Apex Court in Krishna Mochi & others v. State of Bihar, (2002) 6 SCC 81 at para 32:
"32. Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time. In the case Inder Singh v. State (Delhi Admn.), (1978) 4 SCC 161 Krishna Iyer, J. laid down that: (SCC p. 162, para 2) "Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes." In the case of State of U.P. v. Anil Singh, 1988 Supp SCC 686 it was held 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 case of State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73 it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law. In the case of Mohan Singh v. State of M.P., (1999) 2 SCC 428 it was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused."
The result of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. The appellant shall serve out the remaining period of his sentence and pay the fine in accordance with the impugned judgment. Transmit the LC record.