Crl.A. 7(SH)/2010 - Gauhati High Court

IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH.
SHILLONG BENCH.
Criminal Appeal No. (SH) 07/2010
1.Shri Dwik Lyngdoh,
Son of (L) Easting Shanpru,
R/o Village Umtholong, West Khasi Hills,
Meghalaya.
2.Shri Santibok Kharnaior,
Son of Shri Dwik Lyngdoh,
R/o Village Umtholong, West Khasi Hills,
Meghalaya.
: Appellants
-vs-
1.State of Meghalaya,
through the Superintendent of Police,
West Khasi Hills District, Meghalaya.
2.The Officer-in-Charge,
Mairang Police Station,
West Khasi Hills District, Meghalaya.
: Respondents
BEFORE
THE HON’BLE MR JUSTICE AMITAVA ROY
THE HON’BLE MR JUSTICE K MERUNO
For the Appellants : Mr KC Gautam,
Mr D Gangte,
Ms DCM Sangma, Advs
For the Respondents : Mr K Khan, Addl.PP
Date of hearing : 28.09.2011
Date of Judgment & Order : 30.09.2011
JUDGMENT AND ORDER
(Amitava Roy, J)
In challenge is the judgment and order dated 28.07.2010 passed by Smti B.
Giri, the learned Additional District & Session Judge / Additional Deputy
Commissioner, Fast Track Court, East Khasi Hills District in F.T.C. (S) 25/2006
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convicting the appellants herein under Section 302/34 IPC and sentencing them to
suffer imprisonment for life.
2. We have heard Mr KC Gautam, the learned counsel for the appellants and
Mr K Khan, the learned Addl. PP, Govt. of Meghalaya.
3. An FIR was lodged on 13.08.2001 by Mrs Makdalin Kharthangmaw with the
Officer-in-Charge Mairang PS, West Khasi Hills, Meghalaya alleging that on
11.08.2001 at about 7:00 PM three miscreants with their faces covered had
barged into their house and murdered her father i.e. Shri Skhin Basiawmoit in
presence of her mother Smti Skhair Kharthangmaw. Mairang PS Case No. 13(8)
2001 was registered under Section 302/34 IPC and on the conclusion of the
investigation, charge-sheet was submitted against the appellant and others. The
learned trial court framed charge against the appellants under Section 302/34 IPC
to which they pleaded “not guilty” and claimed to be tried. At the trial prosecution,
examined, eleven witnesses including the Investigating Officer and the Doctor who
had performed the postmortem on the dead body. The appellants were thereafter
examined under Section 313 of the Code of Criminal Procedure (for short
hereinafter referred to CrPC) in course of which they pleaded their innocence and
denied the allegations brought against them. They also examined one witness
namely: Shri Khrim Pathaw.
4. The learned trial court on a consideration of all materials on record and
after hearing the learned counsel appearing for the parties convicted and
sentenced the appellants as indicated above.
5. Before adverting to the rival arguments, it would be apt to outline a sketch
of the evidence on record PW 1, Shri Roslang Kharthangmaw, son of the
deceased stated on oath that on the date of occurrence while he was returning
from the field, he met three persons running towards the same direction and on
enquiry they told him that there was some commotion from the place where they
were coming. The witness stated that it was dark by then and when he reached
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home he found his father lying on the floor in a pool of blood. The witness then
recalled that out of the three persons whom he met one was Santibok (appellant
No.2) whom he recognized by his voice. The witness also mentioned that his
younger sister told him that some people had come to their house and assaulted
their father. In cross examination by the defence this witness could not recollect as
to whether these three persons were masked or nor as it was dark. He conceded
that he could not recognize the other two persons but could identify Santibok by
his voice. He further stated that his father was dead by the time he had reached
home.
6. PW-2 Dr G.B.M. Mihsil who had performed the postmortem examination on
the dead body on 12.08.2001 stated to have found the following injuries thereon:
” 1. An incised wound on the left side of the epicastric (Upper part of
the Abdomen) region horizontal in nature size 1 ½ x 1x ¼ .
2. An incised wound on the left side of the umbilical region extending
from the lower side of the epicastric region to upper left llliac fossa
region (above the groin) it is vertical in nature and the size is 8’ x 6” x
6” from this wound the stomach and small intestine protruded.
3. An incised wound in the left lnguinal region (below the groin)
which is vertical in nature and the size is 3”x1x ¼ “.
The witness opined that death was due to shock as a result of severe
hemorrhage caused by sharp weapons. She also stated that considering the type
of injuries chances of survival and recovery was not there especially when the
wound No.2 was fatal. She proved the postmortem report with Exhibit 1. In crossexamination
though she reaffirmed that the injuries were caused by sharp weapon
she could not state as to whether all had been caused by the same weapon.
7. PW-3 Smti Naralian Mary Nampui stated on oath that at the relevant point
of time she was Addl. District Magistrate, Mairang Sub-Division, Mairang and had
recorded the statement on 12.09.2001 of Magdelin Kharthangmaw (PW-5) and
Veronica Kharthangmaw (PW-6) and others. She also stated that on 17.09.2001,
she had recorded the confessional statement of the accused/appellant Santibok
Kharnaior after completing all the requirements under Section 164 CrPC. She also
proved the recorded statements as Exhibit 2 to 7. In the cross-examination, the
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witness, however, conceded that the accused/appellant Santibok Kharnaior in his
confessional statement referred to the incident as narrated to him by one U Sing.
8. PW-4 Shri K.L. Nongbri was the EAC and posted initially at Williamnagar
and thereafter at Mairang at the relevant point of time and had recorded the
statement of Shri Donrang Ryntathiang (PW-8) which he proved as Exhibit 8. He
referred to the statement of Shri Donrang Ryntathinag, that on 11.08.2001 on his
way back from the football ground he met three people two of whom he
recognized as Santibok and Dwik. Shri Donrang Ryntathiang also stated that in
the following morning when he heard that Mr Skin was dead, he had suspected
that Santibok and Dwik had killed him.
9. PW-5 Smti Magdolin Khartnagmaw stated on oath that on 11.08.2001 at
about 6:30 PM while she was at home along with her parents and children, three
persons entered their house and caught hold of her father who was then repairing
a torch light. At this, her father hit back one of them with a hammer and she also
struck them with a wooden stool. At this, one of the miscreants instigated the
others to kill her. The witness stated that by his voice she recognized the person to
be Santibok. She stated that the persons then stabbed her father with a knife on
which he fell down and the assailants then ran away. The witness stated that she
could not see the face of these persons when they entered their house because
their faces were covered and except Santibok she could identify none. She stated
that the accused/appellant Santibok had been residing near her house. The
witness also referred to an incident on 01.05.2001 where the accused/appellant
Santibok along with other four relatives had come to their house at the dead of
night and wished to see her father. Santibok and others returned the next morning
as they could not meet the father of the witness as he was asleep. The witness
stated that after her father had fallen with the injury, he along with others had gone
to search for a vehicle to take him to the hospital but eventually the injured expired
within a short time thereafter. She stated at that time her father had stopped
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talking. In the cross-examination, this witness referred also to another incident of
about 10 years back when the accused/appellant No.1 with his wife had come to
their house alleging that the latter was ill due to black magic practiced by her
father (deceased). The witness stated that the assailants had taken away the Dao
at the time of leaving the place of occurrence. She proved the FIR filed by her as
Exhibit 9. She also proved her statement before the Magistrate under Section 164
CrPC as Exhibit 2.
10. PW-6 Smti Beronica Kharthangmaw stated that on 11.08.2001 at about
6:30 PM hearing a pandemonium from her father’s house she rushed thereto and
on the way saw one man coming out therefrom and running towards the road.
When she reached near her father’s house, she saw two other men coming out
from the compound thereof. The witness stated that she could not recognize the
three persons as it was dark, but stated that from the manner of walking and outer
appearance, the first person that she met was Santibok. By the same measure
she identified one of the two persons whom she met on the way to be Dwik. The
witness claimed that she could identify these two persons by their walk, height and
appearance as she used to meet them almost every day. She also deposed that
Santibok and Dwik were her negihbours. She proved her statement before the
Magistrate under Section 164 CrPC as Exhibit 3. She emphasized that the
accused/appellants were responsible for the murder of her father as for long past
they had been charging him of practicing black magic. In the cross-examination,
this witness could not ascertain as to whether the faces of the three persons,
whom she had met on her way to her father house, had been covered or not as it
was dark. She, however, reiterated that though it was a dark night, she could
recognize the two accused/appellants by their height, appearance and gait.
11. PW-7 Transfer Kurbah, the son-in-law of the deceased proved his
statement under Section 164 CrPC as Exhibit 4. He identified the two
accused/appellants to be the residents of Nongthliew.
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12. PW-8 Shri Donrang Ryntathiang testified that on 11.08.2001 while he was
returning home after watching a football match, he met three persons including
Dwik and Santibok. He stated that at that point of time, they were coming out of
the compound of the house of the deceased. He also proved his statement under
Section 164 CrPC as Exhibit 7. In the cross-examination, he claimed to have
recognized the two accused/appellants on 11.08.2001. He further stated that when
he met them their faces were not covered, but it was dark then. He mentioned that
at the time when he saw and recognized these two accused/appellants the
distance between them was only one feet.
13. PW-9 Shri Kran Kharthangmaw, brother of the deceased stated that on
11.08.2001, he (deceased) was killed by three persons out of whom he knew one
Dwik, the accused appellant No.1. In the cross-examination he admitted that he
did not see the incident. He also expressed his ignorance about enmity between
the accused appellant No.1 and the deceased.
14. PW-10 Shri Shakespeare Kharjana, deposed that having coming to learn
that on 11.08.2001 about the incident, he as the Village Public Announcer took
necessary steps amongst others to inform the Police. He proved the inquest report
Exhibit 10.
15. PW-11 Shri H.S. Mawlieh the Investigating Officer, stated that on
12.08.2011, on receiving the information that Skin was murdered, he made an
entry in the General Diary and proceeded for investigation. He conducted the
inquest on the dead body as per Exhibit 10. The witness stated that in the course
of the investigation, he arrested the accused/appellants and one Roland Lyngdoh
on 10.09.2001. He stated to have received the FIR on 15.08.2001. He admitted
that no weapon was seized. He, however, exhibited the wearing apparels of the
deceased as Material Exhibit I, II & III. In the cross-examination, he mentioned that
the accused/appellant Santibok had given a confessional statement before the
Magistrate.
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16. DW -1 Khrim Pathaw stated on oath that on 11.08.2001 there was a football
match in the village. After the football match, he had returned home along with the
accused/appellant Santibok in the evening. He stated that the accused/appellant
Dwik then had gone to the market at Shillong and had returned later in the evening
at about 8:30 PM. He expressed that he did not know if there was any hostility
between the accused/appellant and the deceased.
17. Mr KC Gautam has emphatically argued that the FIR having been lodged
after 48 hours of the incident and that too without any explanation, the prosecution
case on this ground alone ought to have been rejected as unreliable. This is
coupled with the fact that though the wife of the deceased at the time of filing of
the FIR was present, she was not examined by the prosecution. The learned
counsel urged that if PW-5 had really identified the accused/appellant No.2, there
was no conceivable reason to omit his name in the FIR. PW-5 and PW-6 having
failed to identify the accused/appellants their evidence besides being partisan
ought to be rejected.
18. He argued further that as the witnesses contradicted each other qua their
statements under Section 164 CrPC, the prosecution had miserably failed to prove
the charge against the accused/appellants. Mr KC Gautam urged that the
statement of the accused/appellant No.2 under Section 164 CrPC being
apparently non-culpatory, the same cannot be taken note of in support of the
charge. He argued further that as no weapon of assault had been seized, the
prosecution case is wholly untrustworthy and the impugned judgment and order if
allowed to stand will result in gross in-justice.
18.A The learned Addl. PP as against this has contended that a conjoint reading
of the PW-1, PW-2, PW-5, PW-6 & PW-8 proved the charge against the
accused/appellant to the hilt and no interference with the conviction and sentence
is called for. Drawing the attention of this Court to Section 9 and 156 of the Indian
Evidence Act, 1872 (hereinafter referred to as the Act), Mr Khan has sought to
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impress upon this Court that the evidence of the prosecution witnesses having knit
a set of unimpeachable circumstances unerringly pointing to the guilt of the
accused/appellants, the impugned judgment and order cannot be faulted with. To
reinforce his submission he relied on the decisions of the Apex Court in Ravi
Kumar-Vs.-State of Punjab in 2005 9 SCC 315 and Dalbir Singh –Vs.- State of
Haryana in 2008 11 SCC 425.
19. We have carefully considered the materials on record and the arguments
advanced. It is patent from the testimony of the Investigating Officer that even
before the FIR had been received by the Police, probe into the incident had been
initiated after making a GD entry of the information received. In that view of the
matter, the FIR lodged 48 hours after the incident is not the first in point of time. As
it is an FIR is not substantive piece. Thus the omission to mention the name(s) of
the accused/appellants in the FIR, in the opinion of this Court does not per se
strike at the root of the prosecution case.
20. The evidence of PW-1, PW-5, PW-6 and PW-8 when considered as a
whole leave no manner of doubt about the identification of the accused/appellants
as members of the group of three who had trespassed into the house of the
deceased and had assaulted him with a knife. Whereas PW-5 was an eyewitness
of the incident identified the accused/appellant No.2, PW-6 has assertively stated
to have recognized the accused/appellants to be amongst the three persons
coming out from the compound of her father’s house immediately after the
incident. These three persons in a group were encountered by PW-1 and PW-8 at
or about the time of incident and were found hurrying away from the place of
occurrence. Though the weapon of assault i.e. the knife as referred to by PW-5
could not be retrieved, the evidence of the Doctor as well as the postmortem
report not only prove that the dead body bore three incised wounds caused by a
sharp cutting weapon, the ocular version of PW-5 about the assault by a knife
stood corroborated thereby. The statements made by the PW-5 and PW-6 in
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particular under Section 164 CrPC are also substantially in harmony with their
evidence at the trial. The minor contradictions in the evidence of the prosecution
witnesses, in our opinion do not materially affect its case on merit. Nonexamination
of the wife of the deceased is also not fatal, the charge having been
proved otherwise. A bare reading of the statement of the accused/appellants
under Section 164 CrPC does not show any evidence to conclude that his
conviction on the basis thereof is permissible in law. The evidence of the
prosecution witnesses however read in conjunction build a chain of circumstances
in identifying the accused/appellants to be assailant without any matter of doubt.
21. The decision of Ravi Kumar (Supra) deals with unusual and unexplained
delay in the filing of the FIR. The learned Lordship’s had observed further that in
the event where ocular evidence is cogent and credible, medical evidence to the
contrary cannot corrode the evidentiary value of the former.
22. In Dalbir Singh (Supra), the Hon’ble Apex Court propounded that the
prosecution witnesses can identify a person with whom he may be fairly
acquainted with or from his voice, gait, features etc. The propositions enunciated
in these decisions provide ample support to the prosecution case in the present
factual setting.
23. We have perused the impugned judgment and order and for the reasons
recorded herein above, we are in agreement with the ultimate conclusion recorded
therein. In the result, the appeal fails and is dismissed.
JUDGE
JUDGE
Lam
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