Nitai Bhumiz Vs the State of Assam

Assail is made in this criminal appeal from Jail under Section 383, Code of Criminal Procedure, 1973 [‘the Code’ or ‘CrPC’] to a Judgment & Order dated 02.05.2018 passed by the learned Sessions Judge, Sivasagar in Sessions Case no. 279 [S-C] of 2015, which arose out of G.R. Case no. 702 of 2015 and Sonari Police Station Case no. 176 of 2015. By the Judgment & Order dated 02.05.2018, the accused-appellant has been convicted for the offence under Section 302, Indian Penal Code [IPC] and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo simple imprisonment for another month.

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Page No. 2/22

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The First Information Report [FIR] was lodged before the In-Charge, Suffry Police Out Post on 20.09.2015 by one Kalidas Bhumij [the informant-P.W.6] stating inter-alia that at about 03-30 p.m. on 20.09.2015, when his younger brother, Bokul Bhumij had gone to bring back the cattle from the paddy field in front of his house, his neighbour, Nitai Bhumij [the accused-appellant] killed him brutally by hacking with a Naga Dao in the neck as well as in different parts on the person of Bokul Bhumij.

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On receipt of the FIR, the In-Charge, Suffry Police Out Post [P.W.9] registered a General Diary Entry, G.D. Entry no. 290 of 2015 dated 20.09.2015 at 08-00 p.m. and forwarded the FIR to the Officer In-Charge, Sonari Police Station for registering a case under proper sections of law, while taking up the investigation of the case himself in the meantime. On receipt of the FIR, the Officer In-Charge, Sonari Police Station registered the FIR as Sonari Police Station Case no. 176 of 2015 for the offence under Section 302, IPC on 20.09.2015.

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It was, prior to lodging of the FIR, at 04-00 p.m. on 20.09.2015, Bitu Bhumij [P.W.3] came to Suffry Police Out Post and verbally informed the In-Charge, Suffry Police Out Post [P.W.9] that the accused-appellant had killed his uncle, Bokul Bhumij with a Dao. The said information was entered in the General Diary as Suffry Police Out Post G.D. Entry no. 287 dated 20.09.2015. P.W.9 had, thereafter, visited the place of occurrence [P.O.] at Rangapathar Gaon. At Rangapathar Gaon, there were three hillocks and as per the testimony of the I.O., adduced as P.W.9, he saw the accused-appellant [hereinafter also referred to as ‘the appellant’, at places, for short] sitting on one hillock with a Dao. The appellant was apprehended and the Dao was seized from his possession vide Ext.-3, Seizure List. Thereafter, the deadbody of the deceased, Bokul Bhumij was recovered from the paddy field on the other hillock with the help of others. Inquest proceeding on the deadbody of the deceased was performed and an Inquest Report [Ext.-4] was prepared. A Sketch Map of the P.O. [Ext.-6] was prepared. Thereafter, the deadbody of the deceased was brought to the Police Station.

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Page No. 3/22

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It was at about 06-00 p.m. on the same day, that is, on 20.09.2015, the informant, P.W.6 lodged the FIR stating and alleging the facts, already mentioned hereinabove. On receipt of the FIR, G.D. Entry no. 290 of 2015 was registered by the In-Charge, Suffry Police Out Post and the FIR [Ext.-5] was forwarded to the Officer In-Charge, Sonari Police Out Post whereupon the case, Sonari Police Station Case no. 176 of 2015 [corresponding G.R. Case no. 702 of 2015] was registered.

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The Post-Mortem Examination [PME] on the deadbody of the deceased was performed at Sivasagar Civil Hospital on 21.09.2015 in reference to Suffry Police Out Post G.D. Entry no. 287 of 2015 dated 20.09.2015. In the course of investigation, the I.O. [P.W.9] also forwarded two witnesses, P.W.2 and P.W.3 to the Court of learned Judicial Magistrate, First Class [JMFC], Charaideu for recording their statements under Section 164, CrPC and their statements were recorded under Section 164, CrPC by the learned JMFC, Charaideu on 24.09.2015. After completing investigation into the case, the I.O. [P.W.9] submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 142 of 2015 [Ext.-7] on 30.11.2015 finding a prima facie case for the offence under Section 302, IPC against the appellant herein.

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At the time of submission of the Charge-Sheet, the appellant was in jail custody. His appearance before the learned Committal Court was secured on 10.12.2015 from jail custody. As the copies were ready, the same were furnished to the appellant as per the provisions of Section 207, CrPC. As the Charge-Sheet was submitted against the appellant for an offence under Section 302, IPC, which is exclusively triable by the Court of Sessions, the learned Committal Court vide an Order of Commitment dated 10.12.2015, committed the case records of G.R. Case no. 702 of 2015 to the Court of Sessions, Sivasagar by notifying the Public Prosecutor and by fixing the date before the Court of Sessions on 23.12.2015, with a further direction to produce the appellant before the Court of Sessions on the said date.

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Page No. 4/22

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On receipt of the case records of G.R. Case no. 702 of 2015, the Court of Sessions registered the same as Sessions Case no. 279 [S-C] of 2015. Before the learned Court of Sessions, the case of the prosecution was opened by the learned Public Prosecutor. After hearing the learned Public Prosecutor and the learned defence counsel; and upon perusal of the materials on record, the learned Sessions Judge [‘the Trial Court’, for short] proceeded to frame the following charge against the accused :-

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That on 20.09.2015, at about 03.30 p.m., you have committed murder by causing the death of Bakul Bhumij, the younger brother of the complainant Sri Kalidas of Rangapathar Gaon under Sonari Police Station and thereby committed an offence punishable under Section 302 of the Indian Penal Code [IPC] and within my cognizance.

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After framing the charge, the charge was read over and explained to the appellant to which he pleaded not guilty and claimed to be tried. During the course of the trial, the prosecution side examined nine witnesses and exhibited a number of documents to bring home the charge of murder against the appellant. In addition, two witnesses were examined as court witnesses, C.W.1 and C.W.2. The details of the prosecution witnesses, exhibits and court witnesses are given below :-

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Prosecution Witnesses

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P.W.1	Dr. Brojen Saikia,Medical & Health Officer
P.W.2	Padmawati Bhumij
P.W.3	Bitu Bhumij
P.W.4	Bitu Tanti
P.W.5	Mohan Bakti

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P.W.6	Kalidas Bhumij– Informant
P.W.7	Constable Thaneswar Duarah
P.W.8	AjayBakti
P.W.9	Prabin Kalita – InvestigatingOfficer
Court Witnesses
C.W.1	ASI Puspakamal Barua
C.W.2	Shanti Bhumij– InvestigatingOfficer
Exhibits
Ext.-1	Post-Mortem Examination Report
Ext.-2	Statement under Section 164,CrPC
Ext.-3	Seizure List
Ext.-4	Inquest Report
Ext.-5	First Information Report
Ext.-6	Sketch Mapof the P.O.
Ext.-7	Charge-Sheet
Ext.-X	General DiaryEntryBook
Ext.-X[I]	G.D. Entryno. 287 dated 20.09.2015
Material Exhibit

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Mat. Ext.-1	Seized Dao

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After closure of evidence from the prosecution side, the appellant was examined under Section 313, CrPC. The learned Trial Court also invoking the provisions of Section 311, CrPC examined two witnesses as C.W.1 and C.W.2 thereafter. After examination of the court witnesses, the court witnesses were also permitted to be examined by both the prosecution side and the defence side. Thereafter, the appellant was again examined under Section 313, CrPC. The plea of the appellant in reply to the incriminating circumstances appearing from the testimony of the prosecution witnesses, was of having no knowledge. The appellant also pleaded falsity in the prosecution case. When asked, the appellant declined to adduce any evidence in defence. However, he put forward an explanation when he was asked whether he had anything more to say in the case. After hearing the learned counsel for the parties and after evaluation of the evidence on record, the learned Trial Court proceeded to deliver the verdict of guilt against the appellant, in the afore-stated manner.

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We have heard Mr. B. Prasad, learned Amicus Curiae appearing for the appellant; and Ms. A. Begum, learned Additional Public Prosecutor for the respondent State.

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Mr. Prashad, learned Amicus Curiae appearing for the appellant has submitted that the testimony of the prosecution witness, P.W.2 could not have been accepted at face value as her evidence regarding witnessing the act of assault on the deceased was doubtful. Mr. Prashad has submitted that as per the testimony of P.W.2, she was in the back side of her residence at the time of the alleged incident. If the said piece of evidence that P.W.2 was in the back side of her residence is compared with the Sketch Map of the P.O. [Ext.-6], then it would be difficult to accept the veracity of that part of the testimony of the P.W.2 without any further corroboration. He has further submitted that the statements of the prosecution witnesses, P.W.2 and P.W.3 were recorded under Section 164, CrPC and in their previous statements, P.W.2 and P.W.3 had told a different version, which is at variance with their testimony before the Court. Mr.

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Prashad has further submitted that P.W.3 had a motive as the appellant had explained in his reply during his examination under Section 313, CrPC. He has further submitted that the testimony of P.W.3 cannot be accepted as C.W.2 testified that she did not tell about the incident to P.W.3 at any point of time. Learned Amicus Curiae has, thus, contended that the conviction of the appellant is not sustainable on the basis of testimony of the solitary eye-witness, that is, P.W.2 when her testimony of witnessing the incident itself is doubtful. Learned Amicus Curiae has submitted that as there are no other cogent corroborative evidence to sustain the conviction, the impugned Judgment and Order of conviction and sentence is liable to be set aside.

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Ms. Begum, learned Additional Public Prosecutor appearing for the State has contended that the death of the deceased was clearly a homicidal one as the deceased had sustained a number of grievous injuries on his person. The testimony of P.W.2 cannot be termed as a doubtful one as her presence in her own house at the relevant point of time was natural. From the Sketch Map of the P.O. [Ext.-6] as well as from the evidence on record, it would emerge that the area was a sparsely populated one with only two houses nearby, that is, the house of the appellant and the house of the deceased, P.W.2 and P.W.3. The wife of the appellant was also examined as C.W.2 [C.W.2 incorrectly numbered as C.W.1] and in her testimony, C.W.2 had deposed about witnessing the incident of assault on the deceased by her husband. By pointing to the other evidence on record, learned Additional Public Prosecutor has submitted that no interference is called for as the learned Trial Court had appreciated and evaluated the evidence in the right perspective to return a correct finding.

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We have duly considered the submissions for the learned counsel for the parties and have also gone through the materials/evidence available in the case records of Sessions Case no. 279 [S-C] of 2015, in original, including the testimony of the prosecution witnesses, court witnesses and the documentary evidence.

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Before turning to the evidence of other prosecution witnesses, it appears apt to refer

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Page No. 8/22

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to the medical evidence at first. It was P.W.1, who was working as Medical & Health Officer-I at Sivasagar Civil Hospital on 21.09.2015, who performed the post-mortem examination on that day on the deadbody of the deceased, Bokul Bhumij on Police requisition and in reference to Suffry Police Out Post G.D. Entry no. 287 of 2015. The deadbody of the deceased was identified by P.W.3 and one Mongol Bhumij. In his examination-in-chief, P.W.1 stated that on examination, he found a number of injuries on the person of the deceased and the said injuries were as under :-

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1. External appearance :

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An average built male body of 50 years of age. Rigor mortis is present.

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Injuries :

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[i] One cut injury on occipital region of scalp and upper neck posteriorly with transection of vertebrae and spinal cord. Brain matter exposed. Size of the wound is 6 Inches X 2 Inches X 4 Inches.

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[ii] One cut injury on right forearm and palm, both bones fractured. Size of the wound is 2 Inches X 1 Inch X 1 Inch.

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[iii] One cut injury on left forearm with underlying bones transected. Size of the wound is 2½ Inches X 1 Inch X 2 Inches.

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[iv] One cut injury on right leg just above the ankle joint. Size of the wound is 1 Inch in length.

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[v] One cut injury on left buttock. Size of the wound is 6 Inches X 2 Inches X 2 Inches.

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Cranium and spinal canal :-

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One large cut injury on occipital region of scalp and upper neck with brain exposed and underlying skull bone fractured.

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Vertebrae — transected. Membrane - ruptured.

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Brain and spinal cord — Brain matter exposed on occipital region of skull

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& spinal cord transected.

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Liver, Spleen and kidney — healthy. Bladder — normal. Organs of generation — normal and healthy.

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Thorax :

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Walls, ribs and cartilages — healthy. Pleurae - intact. Larynx and Trachea – healthy. Lung – both lungs healthy. Pericardium — intact. Heart – healthy. Vessels — healthy.

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Abdomen :

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Wall — healthy. Peritoneum — intact.

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Mouth, pharynx, oesophagus — healthy.

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Stomach and its contents – filled with semi-digested food particles. Small intestine and its contents — healthy.

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Large intestine and its contents — healthy.

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6. Muscles, bones and joints :

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Injury — Multiple cut injuries on both forearms, right leg and left buttock. Disease or deformity — Nil.

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Fracture — Both bones fractured on right upper limb. Both bones transected on left side.

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P.W.1 exhibited the Post-Mortem Examination [PME] Report as Ext.-1. He also identified his signature in Ext.-1 as Ext.-1[i] and the counter signature of the Joint Director, Health Services, Sivasagar as Ext.-1[ii]. P.W.1 testified that in his opinion recorded in Ext.-1 [PME Report], he opined that the cause of death of the deceased was due to coma as a result of the severe head injury. P.W.1 testified to the effect that the injury nos. [i], [ii], [iii] & [v] were sufficient to cause death of a person in the ordinary course of nature. He further stated that those injuries might be caused by using sharp cutting weapon like Dao.

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Page No. 10/22

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16.1. P.W.1 was cross-examined by the defence. In his cross-examination, P.W.1 stated that he did not mention in Ext.-1 about the age of the injuries. He further stated that the alleged occurrence took place on 20.09.2015, as could be seen from the Requisition Letter.

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From the nature of injuries, as testified by the Autopsy Doctor, P.W.1 in his testimony and the Post-Mortem Examination [PME] Report [Ext.-1], it is clearly demonstrated that the death of the deceased was a homicidal one. The four nos. of injuries, as stated above, were found to be sufficient to cause death in the ordinary course of nature. From the nature of injuries, the Autopsy Doctor, P.W.1 had opined that the injuries might be caused by using a sharp cutting weapon like Dao.

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Before turning to the testimony of the witnesses, who only termed as vital ones by both the prosecution and the defence, the testimony of the other witnesses can be analysed for finding out their probative value.

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P.W.7 who was a Police Constable, had merely escorted the prosecution witnesses, P.W.2 and P.W.3 to the Court on 24.09.2015 for recording their statements. He only knew that the statements of P.W.2 and P.W.3 were recorded in Court.

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P.W.4 and P.W.5 were co-villagers being inhabitants of Rangapathar Gaon. They knew both the appellant and the deceased. P.W.4 stated in his evidence-in-chief that on 20.09.2015, Police personnel came to the village and requested them to pull out the deadbody from water in the paddy field. As per P.W.4, P.W.5 was also with him at that time and the appellant was with the Police personnel. P.W.4 stated that he pulled out the deadbody from water. P.W.5 was another person who testified that he along with P.W.4 pulled out the deadbody from water in the paddy field. P.W.4 was a signatory to the Seizure List, [Ext.-3] and the Inquest Report [Ext.-4]. Similarly, P.W. 5 was also a signatory to the Seizure List, [Ext.-3] and the Inquest Report [Ext.-4]. By Seizure List [Ext.-3], one Naga Dao of about two feet including the handle was seized by the I.O.

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Page No. 11/22

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[P.W.9] on being produced by the appellant at 05-00 pm on 20.09.2015 at Village – Rangapathar. In his testimony, P.W.4 stated that he did not have any knowledge about seizure of any Dao. On the other hand, P.W.5 deposed to the effect that the appellant had handed over one Dao to the Police personnel and the Police personnel had seized the Dao from the appellant. P.W.5 also identified the seized Dao as Mat. Ext.-1. P.W.5 denied a suggestion that the appellant did not hand over the Dao to Police in the field.

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P.W.8, another co-villager, corroborated the testimony of P.W.4 and P.W.5 on the point that on 20.09.2015, the Police personnel came to the village and requested them to help in recovering the deadbody of the deceased from the paddy field. P.W.8 further stated that the P.W.4 and P.W.5 were with the Police personnel at the paddy field. P.W.8 further stated that after pulling out the deadbody from water in the paddy field, it was put in a pull cart for taking it to the Police Station. P.W.8 was a signatory to the Inquest Report [Ext.-4] and he identified his signature therein as Ext.-4[iv]. P.W.8 further stated that the appellant was found sitting on the paddy field. During crossexamination, P.W.8 stated that he signed the Inquest Report [Ext.-4] at the field itself but he did not know why his signature was taken.

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From the testimony of P.W.4, P.W.5 and P.W.8, it is evident that the deadbody was pulled out from water in the paddy field on 20.09.2015 itself. Meaning thereby, the deadbody was lying earlier in water in the paddy field till it was taken out of water at the intervention of Police personnel. They arrived at the paddy field after the death of the deceased. A Dao of about two feet length including handle was also seized at around 05-00 p.m. on 20.09.2015. The appellant was present at the paddy field during the time of recovery of the deadbody.

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At this juncture, it appears appropriate to mention about the relationship existing between the four witnesses, P.W.2, P.W.3, P.W.6 and C.W.2. P.W.6 was an elder brother of the deceased and C.W.2. The appellant is the husband of C.W.2. P.W.3 is a son of P.W.6 and P.W.2 is the wife of P.W.3. Meaning thereby, C.W.2 is an aunt of P.W.3. The

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appellant is an uncle-in-law of P.W.3.

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In her evidence-in-chief, P.W.2 stated that the house of the appellant was near to their house. The deceased was her uncle-in-law. On the date of the incident, she was in the backside of her house drying clothes. Then, she saw the appellant inflicting four-five blows on the deceased by a Dao, thereby, killing him. The deceased had gone to the paddy field to bring his cows and it was at that time, the appellant inflicted the Dao blows on him. P.W.2 testified that she then rushed to save her uncle-in-law, that is, the deceased but the appellant chased her. She stated that there were no other persons near the place of occurrence at that time. P.W.2 further stated that the deceased died of the injuries. Police personnel came thereafter and interrogated her. She further stated that her statement was recorded in the court. P.W.2 exhibited her previous statement as Ext.-2 and identified her signatures therein.

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24.1. During her cross-examination, P.W.2 stated that the deceased was a bachelor and used to stay in the house of the appellant earlier as a domestic helper. The appellant has his wife [C.W.2]. The appellant’s daughter had already got married. She did not have knowledge about the reason why the deceased left the house of the appellant. She had no knowledge of any dispute between the appellant and the deceased for the deceased leaving the house of the appellant. P.W.2 further stated that while going to bring back the cows, the deceased had one lathi in his hands and there was no Dao in his hands. She did not see any quarrel between the appellant and the deceased at the place of occurrence. P.W.2 denied a suggestion that at the time of giving statement to Police, she had stated about some quarrel between the appellant and the deceased. She denied another suggestion that after the quarrel, the deceased tried to assault the appellant with the lathi. P.W.2 also denied that they used to take the service from the deceased and for the said reason, there was a quarrel between them. P.W.2 also denied a suggestion that to grab the property of the appellant, her husband, P.W.3 had concocted a false case to keep the appellant in jail.

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P.W.3, in his evidence-in-chief, deposed that on the date of the incident, he saw a gathering of people when he was returning home, and they were found watching something. Then his aunt, C.W.2 told him that the appellant had killed the deceased and for that reason, he should not go to the place of occurrence [P.O], that is, the paddy field. However, he went to the P.O. in front of the house of the deceased and going there, he saw that the deadbody of the deceased was lying there with injuries on his person. P.W.3 further stated that he saw the appellant carrying a Dao in his hands. The persons gathered there warned P.W.3 to leave the place. Then, P.W.3 rushed to the Police Out Post to inform the matter to the In-Charge therein. P.W.3 has stated that his wife, P.W.2 kept herself concealed. Police personnel came thereafter with him and apprehended the appellant from his house. Police also seized one Dao from the appellant vide Seizure List, Ext.-3 wherein he gave his signature as Ext.-3[i]. P.W.3 also identified the Dao, seized as Mat. Ext.-1. P.W.3 also exhibited the Inquest Report, Ext.-4. He stated that Police also got his statement recorded in the Court and he exhibited his previous statement as Ext.-5 and he identified his signatures therein as Ext.-5[i] and Ext.-5[ii] [Note : the FIR was also exhibited as Ext.-5].

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25.1. During cross-examination, P.W.3 stated that he did not see the incident of killing the deceased. It was C.W.2 who told him about the incident as she had seen the incident. P.W.3 further stated that he used to reside with the deceased at his house and the house was built by the deceased. He denied a suggestion that the house was built by the appellant and they had forcibly occupied the house. He denied to have any knowledge that for occupying the house, there was quarrel between the appellant and the deceased. He further denied the suggestion that for keeping him in the house, on the date of incident, the appellant made his objection to the deceased and the deceased assaulted the appellant with a stick. He also denied a suggestion that at the time of the incident, he had also attempted to assault the appellant.

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P.W.6 in his examination-in-chief, deposed that on 20.09.2015, his sister, C.W.2 who was the wife of the appellant, came to his house and informed him that the appellant

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had killed their brother, that is, the deceased. On being so informed, he went to the P.O. in front of the house of the appellant and the deceased, and saw the deadbody of the deceased in packed form. By that time, the Police personnel had arrived at the P.O. P.W.6 stated to have lodged the FIR, Ext.-5 and he identified his signature therein as Ext.-5[i]. On arrival at P.O., P.W.6 was told by P.W.2 and P.W.3 that the appellant had killed the deceased by cutting with a Dao.

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26.1. In his cross-examination, P.W.6 stated that he did not see the incident of killing the deceased as he was at his workplace at that time. P.W.6 stated that his house was at a distance of about one mile from the P.O. P.W.6 stated that the deceased was a bachelor. P.W.6 further stated that the appellant and the deceased used to reside together earlier. Thereafter, his son, P.W.3 and his daughter-in-law, P.W.2 started residing together with the deceased in the house of the deceased. P.W.6 further stated that the houses of the appellant and the deceased were adjacent to each other and at the time of the incident, C.W.2 was there. P.W.6 further stated that C.W.2 might have seen the incident and it was C.W.2 who had informed him about the incident. Accordingly, he reported the incident to the Police Station. P.W.6 further stated that P.W.2 and P.W.3 were looking after the property thereafter. He denied a suggestion that to grab the landed property, the deceased and P.W.3 assaulted the appellant and for saving himself, the appellant had to use a Dao for which the deceased might have got some injuries.

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C.W.1 was attached to Saffry Police Out Post as an Assistant Sub-Inspector of Police. When he was summoned to depose as C.W.1 on 18.07.2017, C.W.1 exhibited the General Diary entry, G.D. Entry no. 287 dated 20.09.2015 as Ext.-X[ii] along with the General Diary Entry Book as Ext.-X and the G.D. Entry no. 287 in the General Diary Entry Book as Ext.-X[i]. C.W.1 further deposed that the G.D. Entry no. 287 was registered on 20.09.2015 and in the said entry, it was mentioned that at about 04-00 p.m., P.W.3 came to the Police Out Post to verbally inform that the appellant had killed the deceased with a Dao.

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From the testimony of the witnesses, P.W.2, P.W.3 and P.W.6, it is discernible that it was only P.W.2, who was an eye-witness to the incident. From the testimony of P.W.3 and P.W.6, it is discernible that P.W.3 and P.W.6 were post-occurrence witnesses.

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The statements of both P.W.2 and P.W.3 were recorded earlier under Section 164, CrPC. P.W.2 exhibited her previous statement as Ext.-2 and P.W.3 exhibited his previous statement as Ext.-5. The learned Amicus Curiae has submitted that these two witnesses P.W.2 and P.W.3 had projected a different version in their previous statements.

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On perusal, it is found that neither P.W.2 nor P.W.3 was specifically confronted by the defence when they were cross-examined by making any specific reference to their respective previous statement, Ext.-2 and Ext.-5. Like the statement recorded under Section 161, CrPC, which can be used for the purpose of contradiction, a previous statement recorded under Section 164, CrPC can also be used for contradiction. When a witness is to be confronted with his/her previous statement for the purpose of contradiction, the specific part from the statement where he/she had stated differently, is required to be put to the witness and if the witness admits it, it may amount to admission. But, if the witness denies having given such statement, it does not amount to admission and if it is to be proved that he/she had given such statement, the attention of the witness must be drawn to such part of the previous statement. Section 145 of the Evidence Act is clear on this aspect. In the instant case, no part of their previous statements, Ext.-2 and Ext.-5 was not put to the witnesses, P.W.2 and P.W.3 respectively by the defence to bring in any kind of contradiction. The previous statements of P.W.2 and P.W.3 were not used by the defence to show that they gave a different version of the incident in their previous statements. The statements recorded under Section 164, CrPC can be used in Court, but they are not substantive evidence and they can be used only for corroboration or contradiction. It is the witness’s testimony in court which has the sanctity. The previous statements are of no

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assistance to the appellant regarding these witnesses giving a different version as no contradiction has been established.

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P.W.3, in his testimony, stated that it was C.W.2, his aunt, who informed him about the assault made on the deceased by her husband. In a similar manner, P.W.6 also deposed to the effect that on 20.09.2015, his sister, C.W.2 came to his house and informed him that her husband had killed the deceased, who was a brother of both P.W.6 and C.W.2. But, in the Charge-Sheet [Ext.-7], C.W.2 was not cited as a witness in the list of prosecution witnesses by the I.O.

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The learned Trial Court after closure of evidence from the prosecution side on 20.06.2017; examination of the appellant under Section 313, CrPC on 01.08.2017; and after going through the case records; had reached an opinion on 27.02.2018 that C.W.2 would be a necessary witness. The learned Trial Court had, thereafter, issued summons for the purpose of examining C.W.2 invoking the power under Section 311, CrPC.

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C.W.2 when examined by the Court, deposed that the appellant was her husband and the deceased was her younger brother. On the date of the incident, she was at her matrimonial house at Rangapathar Gaon. She stated that on that day, there was a gathering at the paddy field and she learnt that her husband [the appellant] had killed her brother [the deceased]. After some time, Police personnel arrived at the P.O. She deposed that she saw cut injury marks on the neck of the deceased.

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32.1. When examined by the prosecution, C.W.2 stated that she had seen the incident of cutting her brother [the deceased] by the appellant [her husband] on her own.

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32.2. C.W.2 was thereafter, examined by the defence. C.W.2 stated that the deceased used to stay in the house of the appellant. Subsequently, P.W.3 with his wife, started living with the deceased and therefore, the deceased left their house. The house was

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constructed by the deceased. But, P.W.3, later on, forcibly possessed the house of the deceased. On this issue, the deceased had a quarrel with P.W.2 and P.W.3. C.W.2 further stated that in her matrimonial home, she used to live with her husband, that is, the appellant and their daughters were already married. After the incident, Police found her husband at their house. C.W.2, during her cross-examination, further stated that she did not tell P.W.3 that the appellant had cut the deceased. Conspicuously, the defence did not confront C.W.2 with regard to that part of her testimony that she had witnessed the incident of cutting the deceased by the appellant.

¶106

P.W.3 in his testimony stated that it was C.W.2 who had informed him that the appellant had killed the deceased. C.W.2 during cross-examination stated that she did not tell P.W.3 that the appellant had killed the deceased. Thus, that part of the testimony of the P.W.3 that he was informed by C.W.2 that the appellant had killed the deceased is hearsay. The defence had, noticeably, did not examine C.W.2 as to whether she had gone to the house of P.W.6 and informed him that the appellant had killed the deceased. P.W.6 stated that on being informed by C.W.2, he had lodged the FIR [Ext.-5].

¶107

In Balram Prasad Agrawal vs. State of Bihar and others , [1997] 9 SCC 338 , it has been observed that testimony of a witness based on the information of another person is admissible in evidence if the informant is also examined in the case. The Hon’ble Court has observed in the following manner :-

¶108

…. We may also note that even if the nature of information alleged to be conveyed to PW 6 the father of the deceased by the neighbours about what was actually heard by them on that fateful night may be ruled out as hearsay, the fact that some information was conveyed to him by the neighbours on 12.11.1988 which prompted him to rush to the police as he entertained grave doubt on the basis of what was conveyed to him by neighbours about the conduct of the accused on that night and which made him apprehend about their culpability in connection with unnatural death

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Page No. 18/22

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of his daughter, would remain admissible in evidence as the conduct of this witness. PW 6 propelled by the fact of such information by neighbours about what the witness did on 12.11.1988 and not earlier by approaching the police. That part of his evidence was not shaken in cross-examination. Not only that but even the hostile witnesses PWs 3 and 4 who are alleged to have given some information to the witness PW 6 on 12.11.1988 had not even whispered either in their chief examination or crossexamination about their not having conveyed any information or not having met PW 6 on 12.11.1988 as deposed to by PW 6 in his evidence. This part of the evidence of PW 6 would not be hit by the rule of exclusion of hearsay evidence. …….

¶111

Turning back to the facts of the case in hand, we find that it was the information given by C.W.2 to P.W.6 which prompted P.W.6 to lodge the FIR on that day itself. The fact that C.W.2 had informed P.W.6 about the incident of assault was not put to examination by the defence when C.W.2 was examined. P.W.6 was also not asked anything on this point when he was cross-examined by the defence. Thus, that part of the evidence of P.W.6 that he had lodged the FIR on the basis of information received from C.W.2 would not be hit by the rule of exclusion of hearsay evidence. At the same time, it is to be kept in mind that part of the information wherein C.W.2 might have stated to P.W.6 that it was the appellant who had killed the deceased, would still remain in the realm of hearsay.

¶112

The law relating to Section 311, CrPC has been explained by the Hon’ble Supreme Court in a case titled K.P. Tamilmaran vs. the State by Deputy Superintendent of Police , 2025 INSC 576 . It is acknowledged that there is a wide discretion with the Courts under Section 311, CrPC and these powers can be exercised suo moto also. As the object behind such suo moto power is that the Court must not be deprived of the benefit of any valuable evidence. It is absolutely necessary that the Court must be apprised of the best evidence available. The Courts have, therefore, wide powers to decide on their own whether a witness is required to be called or recalled for examination or re-examination under Section 311, CrPC and the power under Section,

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Page No. 19/22

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311, CrPC can be invoked at any stage of the trial, even after the closure of evidence. Section 311, CrPC can also be read along with Section 165 of the Evidence Act, as the powers of the Court under Section 165 of the Evidence Act are complementary to Section 311, CrPC. If the Court finds that such a person should have been examined as a prosecution witness or he/she was omitted from the list of witnesses due to some oversight, mistake or for any other reason, the Court may allow the application and such a person can be examined as a prosecution witnesses. When the court calls a person as a Court Witness, there are some restrictions regarding cross-examination of such witness.

¶115

In a case neither party is interested in examining a person as a witness, yet, the Court feels that the evidence of such a person is necessary for a just decision, the Court though cannot compel either the prosecution or the defence to call a witness, but it can invoke its power under Section 311, CrPC read with Section 165 of the Evidence Act and call such a person as a Court Witness. Court witnesses can be cross-examined by either side but only with the leave of the Court. Further, the cross-examination is to be restricted only to what was stated by this witness in his/her reply to the questions of the Court, and the Court witness cannot be contradicted to his/her previous statement made before the Police, that is, the statements under Section 161, CrPC.

¶116

Returning back to the testimony of P.W.2, we do not see that the defence had confronted her by putting any question to P.W.2 that it was not possible for her to witness the incident of assault on the deceased by the appellant from the place wherefrom she had witnessed the incident at the P.O. According to P.W.2, at the relevant point of time, she was in the backside of her house. Though learned Amicus Curiae has placed reliance in the Sketch Map of the P.O. [Ext.-6] to urge the point, but, in view of the fact that P.W.2 was not confronted on that point by the defence during her testimony, the same cannot be urged at the appellate stage in the absence of any foundation. In any view of the matter, it is the testimony of the witness before the Court which has the sanctity. A Sketch Map of the P.O. is not a substantive piece of

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Page No. 20/22

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evidence.

¶119

It is settled that a conviction can be based on the sole testimony of a solitary witness. But in order to make the testimony of a solitary eye-witness the basis of conviction, one of the pre-requisites is that his/her presence at the place of occurrence has to be natural. Another pre-requisite to make the testimony of solitary eye-witness the basis of conviction is that the testimony of such eye-witness should be strong, reliable and free from any blemish. It is also settled proposition that it is the quality of evidence not the quantity of evidence, which is material. It has been settled that the evidence of a single witness may sustain a sentence whereas host of vulnerable witnesses may fail to support a simple charge.

¶120

In so far as witnessing the incident of assault on the deceased by appellant is concerned, P.W.2 her house being at a close vicinity to the place of occurrence, her presence at the relevant time in her own house cannot be doubted and is to be treated as natural.

¶121

In her testimony, P.W.2 stated that the appellant inflicted four-five blows on the deceased by a Dao. The ocular testimony with regard to the assault is found to be consistent with the medical evidence adduced by the prosecution through the Autopsy Doctor, P.W.1 and the Post-Mortem Examination [PME] Report [Ext.-1]. In the testimony of P.W.1 and the PME Report [Ext.-1], it was recorded that the deceased sustained five nos. of injuries, as mentioned hereinabove, on his person. Out of five injuries, four of them were sufficient to cause his death. P.W.1 in his testimony further mentioned that those injuries might be caused by using a sharp cutting weapon like Dao. Therefore, the ocular testimony of P.W.2 is found to be consistent with the medical evidence.

¶122

It has been held in Kartik Malhar vs. State of Bihar, [1996] 1 SCC 614 , placed by the learned Additional Public Prosecutor, to the effect that the case of the

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Page No. 21/22

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prosecution cannot be discarded merely on the ground that it was sought to be proved by only one eye-witness, nor can it be insisted that the corroboration of the statement of that witness was necessary by other eye-witnesses. It is open to the Courts to record a conviction on the basis of a statement of a single witness provided the evidence of that witness is reliable, unshaken and consistent with the case of the prosecution.

¶125

Having considered the testimony of P.W.2 from all standpoints, her testimony is found to be strong and reliable and, due to failure on the part of the defence to unshake her testimony, her testimony is found to be without any blemish. It is relevant to note that C.W.2, when she was examined by the prosecution with the leave of the Court, had also admitted about witnessing the incident of assault on the deceased by the appellant on the date of the incident. It is pertinent to state that the house of C.W.2 was also adjacent to the house of P.W.2 and to the P.O., that is, the paddy field.

¶126

The appellant in his explanation provided under Section 313, CrPC sought to project a version that there was some dispute among the deceased, P.W.3 and P.W.6 and he mediated in the dispute. However, from cross-examination of the witnesses, no such trend is visible even in the form of a suggestion.

¶127

In the light of the discussions made above and for the reasons assigned therein, we are not persuaded to arrive at the view, as urged by the learned Amicus Curiae, that the evidence is deficient to sustain a conviction. On the other hand, we find that the prosecution has been able to lead evidence to bring home the guilt of murder against the appellant beyond all reasonable doubts. Consequently, the criminal appeal is found to be bereft of any merits. As a result, affirming the Judgment and Order of conviction and sentence of the learned Trial Court, the criminal appeal is dismissed.

¶128

The records of the Trial Court are to be sent back forthwith.

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Before parting with the record, we wish to place our appreciation on record as regards the services rendered by Mr. Prasad, learned Amicus Curiae appearing for the appellant and direct the Registry to make available to him just remuneration as per the notified fee structure applicable to the Amicus Curiae.

¶131

The District Legal Services Authority is directed to award adequate compensation to the victim[s] after due enquiry under Section 357A, CrPC and the extant Victim Compensation Scheme framed thereunder. We further observe that such enquiry shall be undertaken and completed with utmost expediency and thereafter, to award and disburse appropriate compensation thereunder to the victim[s] entitled upon conclusion of such enquiry.

¶132

JUDGE JUDGE

¶133

Comparing Assistant

Nitai Bhumiz v. the State of Assam

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Nitai Bhumiz v. the State of Assam

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