JUDGMENT
1. By the impugned judgment and order, dated 27.10.2003, the learned Sessions Judge, Nagaon, has, in Sessions Case No. 217(N)/2000, convicted the accused-appellants under Section 302 read with Section 34* IPC and sentenced them, for their conviction under Sections 302 read with Section 34 IPC, to suffer rigorous imprisonment for- life and a fine of Rs. 2,000 each and, in default, rigorous imprisonment for another period of six months and, further, convicting the accused-appellant No. 1 under Section 324 IPC and sentencing him to suffer rigorous imprisonment for one year, the sentences passed against the accused-appellants having been directed to run concurrently.
2. The prosecution’s case, in brief, is that one Nila Kanta Sharma lodged a written Ejahar, on 11.2.1993, at about 9 PM, alleging, inter alia, that on that very day, i.e., on 11.2.1993, at about 5 pm, while the informant’s brother, Radha Kanta Sharma (since deceased), accompanied by Bimal Singh, was on their way back home from Kathalguri, the accused-appellants attacked both of them with sharp-cutting weapons and caused grievous injuries to them and, on witnessing the occurrence, when the nearby people came running to the place of occurrence, the accused-appellants fled away and the two victims were saved. Treating this Ejahar as the FIR, Hojai Police Station Case No. 31/93 under Sections 341/326/307/34 IPC was registered against the accused-appellants. From the place of occurrence, the injured were carried to Hojai and, then, injured Radha Kanta was shifted to the Civil Hospital, Nagaon, where Radha Kanta succumbed to his injuries on 12.2.2003. On completion of the investigation, police laid charge-sheet against the accused-appellants under Sections 324/320/34 IPC showing the accused Siew Nath Kunjuwa as an absconder.
3. To the charge framed under Section 302 read with Section 34 IPC, the accused-appellants pleaded not guilty. To the additional charge framed against him under Section 324 IPC too, the accused-appellants No. 1 plead not guilty. In support of their case, prosecution examined altogether 9 witnesses. The learned Trial Court, then, examined one Nanda Bahadur Chetry as a Court witness. Thereafter, statements of the accused-appellants were recorded under Section 313 Cr.PC and in their examination aforementioned, the accused-appellants denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On finding the accused-appellants guilty of the charge framed against them under Section 302 read with Section 34 IPC, the learned Trial Court convicted them accordingly. On further finding the accused-appellant, Suresh Chauhan, guilty of the offence under Section 324 IPC, he was convicted under Section 324 IPC too. The sentences were passed against the accused-appellants as indicated hereinabove.
Aggrieved by their conviction and sentences passed against them as mentioned hereinabove, the accused-appellants have impugned the same in the present appeal.
4. We have heard Mr. JM Choudhury, learned Senior counsel, assisted by Mr. BM Choudhury, learned Counsel, for the accused-appellants, and Mr. D. Das, learned Addl. Public prosecutor, Assam.
5. Before we examine the veracity of the evidence given by the witnesses, who have been produced by the prosecution as eye witnesses to the alleged occurrence, it needs to be noted that there is no dispute that Radha Kanta Sharma (since deceased) was, initially, examined and treated at Hojai for the injuries sustained by him and after his death, autopsy was performed at Nagaon Civil Hospital. Let us, therefore, first, consider the medical evidence on record. In this regard, it may be noted that according to PW8, on 11.02.93, at 8.30 pm, she examined injured Radha Kanta Sharma and found as follows:
One sharp cutting injury just over right 2nd rib obliquely placed. Size 2.5 cm × 2.5 cm × 2.5 cm.
Over shoulder : One right scapuler region. Size 2.5 cm × 2.5 cm × 3 cm deep.
6. It is in the evidence of PW 8 that no other external injury was found on the person of the said injured and that the injuries sustained by him were fresh and caused by sharp weapon and that the injured was referred to Nagaon Civil Hospital.
7. As far as PW6 is concerned, his evidence is that on 12.2.1993, he conducted post-mortem on the dead body of Radha Kanta and found as follows:
1. Incised wound over the right scapular bone region. Size 2″ × 1″ × 2″.
2. Incised wound over the left side of the chest i.e., in the 4th intercostals surface. Size 2′ × 2′ × 2′.
3. Incised wound over the middle of the right lung. Size 2″ × 1″ × 2″.
4. Incised wound over the middle of the left lung. Size 2′ × 2′ × 2′.
5. Incised wound over the right venticle of the heart. Size 1″ × 1″ × 1″.
8. On examination of cranium and spinal canal, PW 6 found that all organs were healthy. On examination of thorax, PW6 found that the right and left lung were congested, small intestine and large intestine contained faecal matters and that liver, spleen, kidneys and other organs were healthy and bladder was empty.
9. It is in the evidence of PW6 that the injuries were ante-mortem in nature, the death being the result of the shock and hemorrhage, which followed from the injuries sustained and that any sharp-cutting weapon could have caused the said injuries.
10. The veracity of the evidence given by PW6 and PW 8 were not challenged at the trial Court nor have the same been challenged before us. This apart, we find that the evidence given by PW6 and PW8 are substantially the same and the post-mortem examination reveal as many as five incised wounds on different parts of the body of the said deceased, the injuries being ante-mortem in nature and the shock and hemorrhage, which followed the injuries, became the cause of death of the said deceased. It is evident from the evidence of PW6 and PW8 that the injuries aforementioned had been sustained by the said deceased from a sharp cutting weapon.
11. In the face of what we have pointed out above, we see no reason to disbelieve and/or doubt the veracity of the evidence given by these two witnesses or the correctness of their findings and/or the opinion given by them.
12. Bearing in mind the medical evidence on record, we, now, turn to the evidence of PW1 (Bimal Singh). According to the evidence of PW1, on the day of the occurrence, he (PW1) along with Radha Kanta Sharma (since deceased). Joy Kumar Singh (PW3), Basanta Singh (PW4) and Saoren Singh (PW5) was coming, on bicycle, from Kathaltoli and, on reaching near Gobinda Ghosh’s shop at Milik Basti, they stopped in order to take some grams, Radha Kanta Sharma entered into the house of Nanda Bahadur but, shortly thereafter, PW1 heard a commotion from the house of Nanda Bahadur and, on hearing the same, when he went and entered into the house of Nanda Bahadur, he found Radha Kanta lying at the courtyard and trying to get up, but unable to do so and, while accused Sibnath Kujua, Suresh Chauhan and Ganga Bisan were pressing Radha Kanta to the ground, accused Sita Ram Chauhan was assaulting him. PW1 has also deposed that when he resisted them from beating Radha Kanta, accused Suresh hit (PW1) him with a knife like weapon and, on being so hit, when he (PW1) yelled loudly, his friends, Joy, Basanta and Saoren, came running inside and, on seeing them coming, the accused persons fled away, but he (PW1) caught hold of accused Sibnath and the other three persons also caught hold of him. It is in the evidence of PW1 that Radha Kanta sustained injuries, he was treated at Hojai and then, he was shifted to Nagaon Civil Hospital, where he died.
13. Coupled with the above, the evidence of PW 8 is that she had examined, on 11.2.1993 at about 8.30 p.m., PW 1 too and found as follows:-Sharp cutting injury over right deltoid region. Size 2.5 cm × 2.5 cm × 2.5 cm × 3 cm.
14. The evidence of PW1, thus, receives support from the evidence of PW8 that he (PW1) too had sustained injury.
15. Close on the heels of the evidence of PW1, PW3 (Joy Kr. Singh) has deposed that he (PW3) along with Radha Kanta, Bimal Singh (PW2) Soran Singh and Basant Singh was returning from Kathaltoli, they stopped to take rest near Gobinda Ghosh’s shop to have grams, Radha Kanta went to the house of Nanda Bahadur and, shortly thereafter, on hearing Radha Kanta’s cries, Bimal Singh (PW1) went to Nanda Bahadur’s house and, on hearing Bimal Singh’s cry, they (PW3 and PW5) also went to the house of Nanda Bahadur and saw Bimal Singh (PW1) scuffling with accused Siba Kuja and, on seeing them, they (accused Bisan, Ganga Ram and Suresh) ran away.
It is also in the evidence of PW3 that they found Bimal Singh holding accused Sibanath near the place, where Radha Kanta was lying.
16. Broadly in tune with the evidence of PW3, PW4 (Basantha Singh) has deposed that on the day of occurrence, five of them, namely, Chauren Singha, Radha Kanta Sharma, Bimal Singha, Joy Kumar Singha and PW4 were returning home at about 4-4.30 p.m. from Kathaltoli, they stopped near under a tree to take rest and at that time, Radha Kanta went to Nanda Bahadur’s house to buy gram from there and, a little later, on hearing commotion from the house of Nanda Bahadur, Bimal (PW1) went to Nanda Bahadur’s house and when Bimal called them form the said house, they too went there and saw Suresh Chauhan, Sitaram Chauhan and Ganga Bhusan running away from Nanda Bahadur’s house. It is in the evidence of PW4 that they found Radha Kanta lying on the ground and Bimal Singh (PW1) and accused Sibnath engaged in scuffling, whereupon they caught hold of accused Sibnath, the injured was kept at Hojai for treatment for the night and taken to Nagaon Civil Hospital, where he died in the morning. The evidence of PW5 is not very different from the evidence of PW1, PW3 and PW4.
17. A close analysis of the evidence of PW1, PW3, PW4 and PW5 shows that all of them, while returning from Kathalguri, stopped to take rest near Gobinda Ghosh’s shop and while they remained near the said shop, Radha Kanta went to the house of Nanda Bahadur to take gram and, on hearing commotion from the said house, Bimal Singh (PW1) went to the said house and found Radha Kanta trying to get up from the ground, accused Sibnath, Suresh and Ganga trying to pin him down to the ground and accused Sitaram assaulting him and that when PW1 tried to stop the accused persons from assaulting Radha Kanta, accused Suresh hit PW1 with an object like knife and when PW1 cried out, PW3, 4 and 5 came running inside the house and, on seeing them coming, all the accused persons took to their heels; but accused Sibnath, who had been scuffling with PW1, was caught hold of by PW4 and PW5, the injured Radha Kanta was taken to Hojai and he was treated there for the night, PW1 also received treatment there and on the following day in the morning, injured Radha Kanta was shifted to Civil Hospital, Nagalon, where he died.
18. Bearing in mind the above description of the occurrence given by PW1, PW3, PW4 and PW5, when we turn to the evidence of the informant, Nila Kanta Sharma (PW2), who is the elder brother of deceased Radha Kanta, we notice that according to his evidence, he received the information from one Arun about the occurrence and on proceeding towards the place of occurrence, he found people bringing Radha Kanta and Bimal Singh, they went to police station and, on being asked by the police, they went to the hospital. However, PW2 has clearly deposed that he lodged the FIR on hearing about the occurrence from Radha Kanta and Bimal.
19. While considering the evidence of PW2, it is of utmost importance to note that according to the evidence of PW2 and PW3, the injured Radha Kanta was in a position to speak. If the evidence so given by PW2 and PW3 is considered, in the light of the evidence given by PW1, it clearly follows that Radha Kanta was capable of speaking. Unfortunately, however, neither the Investigating Officer nor the prosecution made attempt to know from PW2 as to what exactly Radha Kanta had stated to him (PW2) as regards the occurrence. Thus, the evidence of PW2 that he lodged the FIR on hearing about the occurrence from PW1 is somewhat vague. What, however, the FIR indicates is that when Radha Kanta, accompanied by Bimal Singh and his friends, was returning home from Kathaltoli, the accused persons, in a planned manner, wailed them near Gobinda Ghosh’s shop at Milik Basti and attacked them with sharp -cutting weapons with a view to kill them and, on witnessing the attack, when the nearby people came running to the place of occurrence, the accused persons fled away.
20. Thus, the description of the occurrence, which was, initially, disclosed to the police, through the medium of the FIR, gave no indication at all that Radha Kanta and Bimal Singh were accompanied by PW3, PW4 and PW5 nor had it disclosed that Radha Kanta had gone to the house of Nanda Bahadur. What is, thus, glaringly noticeable to the eyes is that the initial occurrence projected by the informant, who is brother of the said deceased and who claimed to have lodged the FIR on hearing about the occurrence from the deceased himself, does not fit into the description of the occurrence, which has been presented at the trial by PW1, PW3, PW4 and PW5. So far as the evidence of Nanda Bahadur (i.e., the Court witness) is concerned, his evidence does not help the case of the prosecution at all inasmuch as his evidence is merely to the effect that he did not even know Radha Kanta by name and face and that he knows nothing about the occurrence.
21. The above discussion of the evidence on record brings us to the evidence of PW7. According to this witness, he has a tea- stall at Milik Basti Tinali and he sells gram there. As regards the occurrence, PW7 has deposed that Radha Kanta came to his house at about 6 pm and he was followed by accused Suresh Chauhan, a quarrel took place between Radha Kanta and Suresh and, then, PW7 heard the shouts like ‘save’, ‘save’ and people near by arrived there and on the next day, in the morning, he heard that Radha Kanta had died at the hospital. In his cross-examination, PW7 has clarified that there is a liquor shop and a few people were drinking there.
22. A close scrutiny of the evidence of PW7 reveals that his evidence completely belies the description of the occurrence, which has been presented, as already indicated hereinabove, by PW1, PW3, PW4 and PW5 inasmuch as according to PW7, the quarrel between accused Suresh Chauhan and Radha Kanta took place at the tea-stall of PW7 and that from the tea-stall, both the said persons, while quarrelling went close to a tree, located nearby, and it was on hearing a loud voice ‘save’, ‘save’, that the people came running. The evidence of PW7 gives no indication at all that Radha Kanta was accompanied by Bimal and/or that Radha Kanta had gone to the house of Nanda Bahadur and/or that Radha Kanta and Bimal were accompanied by PW3, PW4 and PW5 and/or hearing the commotion, Bimal went to Nanda Bahadur’s house and/or, on hearing Bimal’s cries, PW3, PW4 and PW5 entered into the house of Nanda Bahadur.
23. What emerges from the above discussion of the evidence on record is that the description of the occurrence in the FIR, which was lodged on the basis of the information received by the brother of the injured from the injured himself and the eye witnesses, who had accompanied the injured, is belied by the evidence of PW1, PW3, PW4 and PW5. At the same time, the evidence given by PW7 belies not only the description of the occurrence, which the FIR had projected, but that PW7’s evidence also contradicts the description of the occurrence, which PW2, PW3, PW4 and PW5 have presented. In short, thus, prosecution has presented before the Court three different and contradictory versions of the occurrence. Faced with such a situation, it is the duty of the Court to ascertain as to which one of the three different sets of the occurrence presented before the Court is worthy of credence. If the Court is unable to ascertain as to which one is the truthful version of the occurrence and/or which witness is reliable, the Court has to hold that the evidence adduced by the prosecution is not sufficiently cogent and reliable to hold the accused-appellants guilty of the charge. In other words, if the Court fails to disengage the truth from the falsehood or if the truth and falsehood is so inextricably mixed with each other that it becomes impossible to disengage the truth from false-hood, the benefit of such a situation has to be given to the accused rather than the prosecution.
24. In the case at hand, the prosecution presented before this Court, at least, two different versions of the occurrence given by two different sets of witnesses and since these two sets of witnesses, one consisting of PW1, PW3 and PW5, and other, consisting of PW7 alone, are such that the Court cannot keep one version of the occurrence excluded from consideration, the logical conclusion will be that none of the two versions of the occurrence can be relied upon, more so, when the FIR belies both versions of the alleged occurrence.
25. On a close scrutiny of the impugned judgment, we find that the learned trial Court has paid absolutely no attention to the fact that the evidence given by PW1, PW3, PW4 and PW5 stands belied by PW7 and that the two different versions of the occurrence given by two sets of witnesses stand belied by the FIR too. The learned trial Court has, thus, completely failed to marshal the evidence on record. It is trite that the evidence has to be weighed and not counted and that the evidence of one firm witness cannot become reliable merely because of the fact that the evidence of the infirm witness has been corroborated by many other witnesses of the same brand. In short, one infirm witness cannot be taken to have been corroborated by the evidence or another infirm witness.
26. What logically follows from the above discussion is that merely because of the fact that the evidence of PW1 has been corroborated by, PW3, PW4 and PW5, the evidence of PW1 will not become reliable, when the version of the occurrence given by them is belied by the first disclosure of the occurrence projected by the informant and by the evidence of PW 7, particularly, when the unassailed evidence of the informant (PW2) is that the description of the occurrence given in the FIR was based on what the injured and PW1 (who too was injured) had narrated to the informant. At the same time, the evidence of PW7 is also not worthy of credence inasmuch as the same is belied by the evidence of PW1, PW3, PW4 and PW5. One could have, perhaps, tempted to give more credence to the evidence of PW1, PW3, PW4 and PW5 if their evidence stood supported by what PW1 had, initially, narrated about the occurrence to PW2 as stand reflected from the FIR.
27. What crystallizes from the above evidence on record is that the evidence on record is not cogent, clear, adequate, and sufficiently reliable to hold that the prosecution had adduced sufficiently convincing evidence to substantiate the charges framed against the accused-appellants. In such circumstances, the learned trial Court ought to have granted the accused-appellants, at least, benefit of doubt.
28. In the result and for the foregoing reasons, this appeal succeeds. The impugned conviction of the accused-appellants and the sentences passed against them are hereby set aside. The accused-appellants are held not guilty of the charges framed against them and are acquitted of the same under the benefit of doubt. The accused-appellants shall be set at liberty forthwith unless they are required to be detained in connection with any case.
29. Send back the LCRs.