Subhash Rabidas and Sishu Karmakar vs State of Assam

U.L. Bhat, C.J.—Two accused in Sessions Case No. 120 of 1987 on the file of the Additional Sessions Judge, Cachar, Silchar, who have been convicted u/s 302 I.P.C. read with Section 34 I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- and in default to undergo rigorous imprisonment for one month are the Appellants herein. The case arose on the murder of P. Ws.1''s second daughter Mini Roy, aged 16 years at about 9 P.M. on 26.6.85 at a place behind the house of P.W.3 by the side of the river in Barnerpur Garden.

The first information (ejahar Ext.1) in the case was lodged by P.W. 1, admittedly at 5.30 A.M. on 27.6.85. According to Ext. 1, at about 4 P.M. on 26.6.85, Saraswati, mother of first Appellant, went to P.W.1''s house and took Mini Roy to her own house. At about 10 P.M. or 11 P.M. PW 2 cams to PW 1''s house and told him that Mini Roy was lying seriously injured on the road in front of the house of Basua Rabidas at Barnerpur Garden. P.W. 1 rushed to the place He came to know from Mini Roy that the two Appellants cajoled her from the house of Saraswati to the road, held her and attempted to outrage her modesty and when she shouted, second Appellant took out a sharp dagger and hacked her on the neck causing severe bleeding injury and thereafter the two Appellants left her on the road. PW 1 and others took the injured girl for the purpose of getting her to the hospital. She died on the way. Therefore, they took her to Lala Police Station. PW 1 gave Ext. 1 ejahar on the basis of which PW.8, Officer-in-charge registered a case. At his instance, PW 1 and others took the dead body to Hailakandi Hospital. PW 8 proceeded to Hailakandi and held inquest over the body under Ext.5 report. He went to the village, prepared a sketch map, questioned witnesses, seized Exts. 7 and 8 samples of soil, seized a torch from Syed Ali under Ext. 2 and a lamp from PW 6 under Ext 3. Thereafter PW 3 seized the clothes found on the dead body under Ext. 9. PW 8 arrested the two Appellants and seized a white pant with blood stains from first Appellant. The clothes were sent to the Forensic Science Laboratory. On the transfer of PW 8, his successor PW 9, completed the investigation and filed charge-sheet.

On the two Appellants pleadings not guilty, prosecution examined nine witnesses. Defence did not tender any evidence. Learned Sessions Judge, in the guise of questioning the Appellants u/s 313, Code of Criminal Procedure practically cross-examined them and they denied the truth of the evidence. Learned Sessions Judge acted on the evidence of P.W. 4 that first Appellant''s mother Saraswati had taken Mini Roy to her house in the evening and she did not return home and on the evidence of P. Ws. 1, 2, 5 and 6 regarding dying, declaration said to have been made by the deceased and convicted and sentenced the Appellants as indicated above.

From the evidence of P.W. 7, who conducted post-mortem examination, it is seen that the deceased had one external injury, namely, gaping transverse wound, 2 cm. X 1 cm., over the level of cricoid (cartilage of larynx) on the right side pentrating through larynx. Internally clotted blood was present in larynx and trachea, haemorrhage was present in thyroid gland. Internal corotid artery was injured. The post-mortem report further shows that the wound entered the larynx and injured the right lobe of thyroid causing haemorrhage and "causing obstruction in the larynx". P.W. 7 opined that death was caused by shock, haemorrhage and asphyxia caused by injury to the thyroid gland and larynx and internal carotid artery on right side.

P.W. 4, the eldest daughter of P.W. 1 and eldest sister of the deceased, deposed that at about 4 P.M. first Appellant''s mother Saraswati came to her house and took the deceased to her house saying that Saraswati''s married daughter had come home and wanted to see Mini Roy and thereafter Mini Roy did not return. There does not seem to be any reason to disbelieve this witness in this regard.

The only ether evidence adduced by the prosecution to dying declarations spoken to by P. Ws. 1, 2, 5 and 6. This evidence was challenged by the defence as untrue and also on the ground that the injured was not in a condition to speak at all. Learned Sessions Judge rejected the defence contention and acted on the dying declarations as true being made voluntarily. This finding1 is challenged by learned Counsel for the Appellants.

The occurrence is said to have taken place behind the house of P.W. 5 and Syed Ali by the river side. They are the closet neighbours to the scene of occurrences. They heard groaning noise at about 10 or 10.30 P.M. P.W. 5 heard groaning noise from the vegetable garden Adjacent to the river. She took a lamp and went out. She saw Syed Ali, a neighbour, coming out with a torch. They approached the place from when they heard the noise asking "who was there". Mini Roy said "Masi Amare Bachao" entreating that she should be saved, P.W. 5 raised an outcry and other people came. Syed Ali went and gave information to P.W. 6, who came there. Thereupon Syed Ali was sent to inform P.W. 1 and thereafter P. Ws. 1, 2 and others came there. P.W. 5 asked Mini Roy as to how she was injured and the girl said that Sishu and Subhash injured her. Subsequently P.W. 2, Ramdas, Syed Ali and others questioned the girl and she said the same thing. In cross-examination she stated that the girl was in semi-conscious state and could recognise people and talk. It is seen that she did not tell the police that the girl said "Masi Amare Bachap". She did not ask the girl why she was injured and the girl did riot say anything in that behalf.

P.W. 6 deposed that he was informed by Syed Ali and he came to the place by the river side. He alongwith Syed Ali and Ramdas carried the injured to the road. P.W. 2, 5, Basudev and Ramdas asked Mini Roy as how she was injured and she said that Sishu and Subhash injured her. Thereupon the witnesses alongwith Syed Ali went to the Manager of the Estate and informed him and the latter asked them to inform P.W.1 to take the injured to the hospital. Thereupon Syed Ali went to P.W.1 and brought him. In cross-examination he deposed that Mini Roy was restless. It took 30 to 45 minutes for the witness to return from the Manager''s house, P.W.1 deposed that P.W.2 came to his house and gave information at about 10 or 10.30 PM that her daughter was lying injured on the road. He proceeded to the place and found her lying there and when asked she said that Sishu and Subhash caused injury to her. P.W. 5, 6, Ramdas and others were present. In cross-examination he daughter was lying 30 to 40 persons were present and Mini Roy was finding difficulty in breathing and she was profusely bleeding.

P.W. 2, the uncle of Syed Ali, deposed that daring the relevant night Syed Ali came and informed him and both of them went to P.W. 1''s house to give information that his daughter was lying Injured and unconscious. Thereafter all of them went to the place. According to him, he questioned Mini Roy and she said that she was injured by Sishu and Subhash. At that time P.W. 1 was present, In cross-examination he stated that when he came there Mili Roy was gasping.

First information statement in this case is improtant since it was given by P.W. 1, who claims to have heard dying declaration. Though in his evidence be and the other witnesses stated that the dying declaration consisted only of the words "Sishu and Subhash injured me", the version of the dying statement given in the first information statement is long exhaustive. First information statement shows that Mini Roy told P.W. 1 that from the house of Saraswati the two Appellants had cajoled Mini Roy to the road, that on the road they held her, attempted to outrage her modesty and when she shouted, second Appellant, took a sharp dagger and hacked her on her neck causing severe bleeding injury and they left her on the road in front of the house of Ramdas. It is rot explained by the prosecution why none of the witnesses, who spoke about the dying declaration, deposed to these details. Even P.W. 1, the author of the first information statement, did not standby this version. The version is inaccurate since going by the evidence in the case, P.W. 6 and others carried Mini Roy from near the river side to the road. While the version in the alleged dying declaration referred to in Ext. 1 is that the Appellants left Mini Roy on the road.

The occurrence took place at about 9 or 10 P.M. on 26.6.85, First information statement purports to have come into existence within a few hours, namely, 5.30 A.M. of 27.6.35. It is seen to have been despatched only at 10 A.M. on 28.6.85. We are told that the court is situated 21 K. Ms. away from the police station. Prosecution made no attempt to explain the delay in the despatch of the first inform at ion report to the court. The suspicion on this account is strengthened by certain aspects of the evidence given by P.W. 1, the author of the first information statement. In chief-examination he stated that his daughter died on the way and then they took the dead body to the police station and he reported the occurrence to P.W.8 who directed him to take the body to Hailakandi. He returned to the police station only after he performed the last rites. At the fag end of the chief examination he stated that he lodged the first information statement only after he came back to the police station. This answer would completely destroy the efficacy of the first information statement as well as the first information report. In cross-examination he stated that when he reported the matter at the police station, P.W. 8 did not record it. He left the police station with the body at 8 or 8.30 A.M. and went back to the police station only in the evening after performing the last rites. He also stated at one stage that he gave Ext. 1 ejahar in the morning. At another stage he stated that when he went back to the police station after the last rites, he told the police about the occurrence and that was recorded in a red book. P.W. 3 deposed that be wrote Ext. 1 as requested by P.W. 1 and gave it to P.W. 1. He has no case that he handed it over to P.W. 8. Inspite of all these contradictory aspects of the evidence, P.W. 8 in chief examination do not care to state at what time he received Ext. 1, though in cross examination he asserted that be received it at 5.30 in the morning. The circumstances referred to above and the contradictions in the evidence would render it extremely doubtful if the first information statement was given by P.W. 1 at the police nation at 5.30 A.M., as claimed. There is every probability of the, document having come into existence much later. That must be the reason why it could be despatched to the court only at 10 A.M. on 28.6.85. This conclusion practically destroys the value of the dying declaration spoken to by P.W. 1. To that extent this casts doubt on the evidence of other witnesses, who spoke about the dying declaration.

It is argued by the learned Prosecutor that P. Ws. 2, 5 and 6 are independent witnesses who have no grudge against the Appellants and therefore dying declaration spoken to by them can be safely accepted to be true. Whether their evidence can be believed would depend upon the condition of Mini Roy at the time and her capacity to understand things and to speak. No doubt the witnesses deposed that she spoke a few words implicating Sishu and Subbash. P.W. 7, who conducted post mortem examination, was not asked anything about this aspect in chief examination. In cross examination be deposed that there was profuse bleeding from the injury and ordinarily the victim would get confused. In an answer to the question by the court he said that Mini Roy, with the injuries she sustained, could not have talked as the vocal chordas could not function because of the damage in the larynx. Learned Public Prosecutor in the Sessions Court made no attempt to get this answer clarified.

Being dissatisfied with the evidence of PW. 7, learned Sessions Judge directed the constitution of Medical Board to study the post mortem certificate and give its opinion. It appears that the Medical Board gave its opinion which is not seen marked or proved. A member of the Medical Board was examined as C.W. 1. He deposed that the description of the injury in the postmortem report was insufficient that is, depth and direction of the injuries were not detailed and, therefore, "ideal comments" could not be provided. He further stated that Mini Roy might have been in a position to speak after sustaining the injury since the post mortem report does not mention of injury to vocal chords. According to him Mini Roy would have succumed to the injury "within a couple of minutes not exceeding half an hour at the maximum" and initially for few minutes she could have continued to speak. For a moments after sustaining the injury there might have been a state of mental confusion which, however, could not have persisted. In cross-examination he deposed that he was not an expert in E.N.T. and P.W. 7 was in a better position to give opinion about the injuries and their effect.

There is an apparent contradiction between the evidence of the two medical witnesses. P.W. 7 is positive that Mini Roy could not have talked as the vocal chords could not function. C.W.1 deposed that for a few minutes she could have talked because there was no mention of injury of vocal chords. We have been referred to the post mortem certificate which indicates injury penetrating through layrnx, injury to the internal corolid artery, presence of clotted blood in larynx and trachea and haemorrhage in thyroid gland causing obstruction in the larynx. In the light of these feature noted during post mortem examination, the evidence of P.W. 7 is certainly preferable to the evidence of C.W. 1. This is further supported by the evidence of some of the witnesses, who deposed that either she was unconscious, or that she was gasping etc. In these circumstances, learned Sessions Judge was in error in accepting the evidence of P. Ws. 1, 2, 5 and 6 that Mini Roy told them that Sishu and Subhash caused injury to her. Subhash, being the son of Saraswati, probably could be identified us the second Appellant. Prosecution has not attempted to explain by what process the person referred to in the alleged dying declaration as Sishu was identified as first Appellant. If the alleged dying declaration cannot be relied upon, there is no other evidence connecting the Appellants with the crime. We may also refer in this connection to the report of the Forensic Science Laboratory, Ext. 10, which shows that the pant seized did not contain any stain of human blood.

We also notice that the evidence of P. Ws. 1, 2, 5 und 6 relating to the dying declaration was not put to either of the Appellants by the learned Sessions Judge. Appellants, therefore, had no opportunity lo have their say regarding this evidence. This, however, does not confront us with any difficulty sine we have already held the evidence relating to dying declaration cannot be accepted.

We are distressed to read the questions put by learned Sessions Judge to the two Appellants u/s 313(1)(b) of the Code of Criminal Procedure at the end of prosecution evidence. The only question put to second Appellant was--"It has been alleged as well as adduced in evidence against you that on 26 6.1985 at about 9 P.M. you along with other accused Subhash Rabidas killed Srimati Mini Roy by hacking her in the neck with dagger or the weapon like, a dagger at Bernarpur Garden. What have you to say in this regard?" What was indicated to the question was what was alleged in, the court charge and there was no direct evidence in that behalf, Even the general question "Do you want to say anything else?" was not put to either of the Appellants. The only evidence against second Appellant consisted of alleged dying declarations. This incriminating circumstance was not put to second Appellant. This incriminating circumstance was not put to second Appellant. There were there items of evidence against the first Appellant i.e. Mini Roy going to the house of Saraswati (first Appellant''s mother) at 4.00 P.M. and not returning home, alleged dying declarations and seizure of pants with alleged bllod stains. The two latter circumstances were not put to him. Instead, question in the nature of cross-examination was put to him, e.g. "Where were you that day between 4 P.W. and 9 P.W.?" "How is Mitra Rabidas (daughter of Saraswati) related to you?", "Where was she that day?", What was the relation between Mitra and Mini?", "Is Sishu Karmakar your relation?" and "Did Sishu go to your house between 4 P.M. to 9 P.M. on the day of occurrence or did you go to your house between 4 P.M. to 9 P.M. on the day of occurrence or did you go to Sishu''s house or did both of you meet each other between this period?" Neither of the Appellants was asked if he desires to examine any witness.

It is obligatory, u/s 313(1)(b) of Code of Criminal Procedure, that the Court should question accused generally on the case for the purpose of enabling him personally t6 explain any circumstances appearing in the evidence against him. By enabling accused to explain incriminating circumstances appearing against him, it is intended to further justice and to enable the court to decide question of guilt of accused. The procedure helps court since though the answer given by accused is not evidence, it has to be taken into consideration. No question can be put when there is no evidence at all against the accused, Question cannot be put on the basis of views, observations and inferences of court. The object of the questioning is not to build the case against the accused from his answers and absence of answers or to fill up lacuna in the prosecution evidence. Questions in the nature of cross examination or of inquisitional nature cannot be put. No question can be put with a view to trap accused or compel him to make incriminating admissions. Questioning "generally on the case" does not mean general questions. It means questions must relate to the whole case and not limited only to a few aspects. Salient points appearing in the evidence against accused must be pointed out. Complicated questions question involving a member of matter or long string of question or composite questions must be avoided. Separate question must be put on each material circumstance. At the end of recital of each circumstance he must be asked "Do you want to say anything about it". Where more than one accused is tried, each of them must be questioned separately. The court has a difficult duty to perform and it has to be performed with caution, fairly and properly, for, questioning is pot an empty, formality. See Tara Singh Vs. The State, ; Machander Vs. State of Hyderabad, , Jai Dev Vs. The State of Punjab, ; State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, ; Parichhat and Others Vs. The State of Madhya Pradesh, ; Shri Ram Vs. The State of U.P., ; State of Himachal Pradesh Vs. Wazir Chand and Others, ; State of Himachal Pradesh v. Wazir Chand and Ors. Effect of lack of proper questioning of accused has been dealt with in Rameswar Rathi v. State of Assam (1993) 1 GLR 136 at para 16.

Learned Sessions Judge totally failed to appreciate his duty u/s 313(1)(b), Code of Criminal Procedure. He treated Prosecution and accused unfairly by not questioning accused regarding dying declaration and other incriminating circumstances. He treated accused unfairly by cross examining them, apparently bent on a fishing expedition. He failed to hold the scales even and to discharge his judicial responsibility fairly and properly. A copy of the judgment may be placed before the Chief Justice on administrative side. Copy of the judgment may be brought to the notice of all Judicial officers.

In the result we set aside the conviction and sentence entered against the Appellants and acquit them of the charge against them. They will be set at liberty if their continued detention is not warranted in connection with any other case.

The appeal is allowed.