Gauhati High Court
Page No.# 1/22 vs The State Of Assam on 16 May, 2025
Page No.# 1/22
GAHC010001362022
2025:GAU-AS:6140
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/18/2022
PAKU KARMAKAR
S/O. SRI ETUWA KARMAKAR, R/O. CHENGELI LINE, TALAP T.E., P.S.
DOOMDOOMA, DIST. TINSUKIA, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MS. M BARMAN (AMICUS CURIAE),
Advocate for the Respondent : PP, ASSAM,
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:::BEFORE:::
HON’BLE MRS. JUSTICE MITALI THAKURIA
Date of hearing : 07.01.2025
Date of Judgment & Order: 16.05.2025JUDGMENT & ORDER (CAV)
Heard Ms. M. Barman, learned Amicus Curiae for the appellant. Also heard
Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent.
2. This jail appeal, under Section 374(2) of the Code of Criminal Procedure,
1973, is preferred against the judgment & order dated 19.03.2021, passed by
the learned Sessions Judge, Tinsukia in Sessions Case No. 51(T)/2018, under
Sections 326/307 of the Indian Penal Code, whereby the appellant has been
sentenced to undergo Rigorous Imprisonment for 10 (ten) years and to pay fine
of Rs. 2,000/- (Rupees two thousand) only, in default to suffer further simple
imprisonment for 3 (three) months for the offence under Section 307 of the
Indian Penal Code and also sentenced to undergo Rigorous Imprisonment for 10
(ten) years with a fine of Rs. 3,000/- (Rupees three thousand) only, in default to
undergo further imprisonment for 6 (six) months for the offence under Section
326 of the Indian Penal Code.
3. The prosecution case, in brief, is that on 23.07.2014, one Shri Amar Boraik
lodged an ejahar before the In-Charge, Talap Police Out-Post alleging inter alia
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that on 22.07.2014, at about 11.00 a.m., his brother-in-law, Shri Paku Karmakar
of Chengeli Gaon, hit his elder sister, namely, Mina Karmakar with a dao in an
attempt to kill her, caused grievous hurt to her in presence of his old mother,
aged about 60 years, and children and cut down one half of her hand’s thumb
finger and hair. The injured was admitted to Assam Medical College Hospital,
Dibrugarh. Upon receipt of the said ejahar, the police of Talap Out-Post made
G.D. Entry No. 390, dated 23.07.2014, and forwarded to Officer-In-Charge of
Doomdooma Police Station, which was accordingly registered as Doomdooma
P.S. Case No. 398/2014, under Sections 326/307 of the Indian Penal Code, and
endorsed S.I.(P) Thogish Doley to take up investigation.
4. During investigation, the I.O. visited the place of occurrence, drew the
sketch map, examined the complainant, the victim and available witnesses and
also arrested the accused and forwarded him to judicial custody. The I.O. also
collected the medical report of the victim wherein the doctor opined that the
nature of injuries to be grievous one.
5. Thereafter, on completion of investigation, the I.O. having found a prima
facie case laid Charge-Sheet against the present accused/appellant vide Charge
Sheet No. 159/2015, dated 31.08.2015, before the Court of learned Chief
Judicial Magistrate, Tinsukia, which was subsequently committed to the Court of
learned Sessions Judge, Tinsukia having found the offence exclusively triable by
the Court of Sessions. Accordingly, learned Sessions Judge, after considering the
materials available on record and also finding prima facie case, framed charge
against the present accused/appellant under Sections 326 & 307 of the Indian
Penal Code. The charges were read over and explained to the
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accused/appellant, to which he pleaded not guilty and claimed to be tried.
6. During the trial of the case, the prosecution examined as many as 11
(eleven) numbers of witnesses, including the I.O. and M.O. The accused was
also examined under Section 313 Cr.P.C. Thereafter, the learned Sessions Judge,
Tinsukia after hearing the arguments put forward by both the parties and on
perusal of the materials available on records, vide judgment & order dated
19.03.2021, in Sessions Case No. 51(T)/2018, convicted the accused/appellant
under Sections 326/307 of the Indian Penal Code, and sentenced him, as
aforesaid.
7. On being aggrieved and dissatisfied with the aforesaid impugned judgment
& order dated 19.03.2021, passed by the learned Sessions Judge, Tinsukia in
Sessions Case No. 51(T)/2018, under Sections 326/307 of the Indian Penal
Code, the present appeal has been preferred by the accused/appellant from jail.
8. Ms. Barman, learned Amicus Curiae for the appellant, submitted that the
learned Special Judge did not consider the evidence on record in its true
perspective and thus arrived at a wrong decision convicting the
accused/appellant under Sections 326/307 of the Indian Penal Code. She further
submitted that that the P.W.1 does not know till date as to who caused injuries
to his sister, though he lodged the F.I.R. against the present appellant. Thus, his
evidence cannot be considered at all and he simply lodged the F.I.R. only
hearing the story from his sister and he was also subsequently declared hostile
by the prosecution. More so, there is no eye witness to the prosecution case
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and none of the witnesses have seen the occurrence. She further submitted that
the father of the victim, who is also one of the vital witnesses of the prosecution
case, was also declared as a hostile by the prosecution as he also did not say
anything as to who caused the injury to his own daughter. The other witnesses
are some of the neighbours and hearsay witness and they did not have any
personal knowledge in regards to the said incident. She accordingly submitted
that the order of conviction was passed only on the basis of the evidence of the
victim as well as the doctor and no other witnesses had supported the
prosecution case. Further she submitted that from the evidence of P.W.-2
(victim), it is also seen that there was no such intention on the part of the
appellant to cause injury on her person, but as she rebuked the
accused/appellant after a quarrel, he hit the victim out of anger. More so, from
the evidences of the P.Ws. also, it is seen that there is no evidence of any
previous quarrel between parties. Thus, she submitted that the conviction
cannot be based solely on the basis of the evidence of victim as well as the
doctor wherein there is no supporting evidence in the present case and the vital
witnesses of the prosecution, i.e. the P.W.-1 (informant), as well as the P.W.-8
(father of the victim), also did not support the case of the prosecution for which
they were also declared hostile by the prosecution. Accordingly, she submitted
that the learned Sessions Judge had arrived at a wrong decision and passed the
judgment and order of conviction which is liable to be set aside and quashed.
9. Mr. Sharma, learned Additional Public Prosecutor, submitted in this regard
that P.W.-2, victim of the case, is the star witness of the case and her evidence
is completely corroborated by the medical evidence of the doctor. He further
submitted that the intention of the present appellant is also clear as he given
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the blows on the vital parts of the victim with an intention to cause grievous
injuries on the person of the victim. Further he submitted that though there is
no eye witness to the prosecution case, but all the witness have seen the injury
sustained by the victim as well as the severed thumb of the victim which was
subsequently sent for FSL/Serological Test. Thus, there cannot be any bar to
pass order of conviction on the basis of the sole testimony of the victim which
completely corroborates the medical evidence and therefore, the learned
Session Judge committed no error or mistake while passing the order of
conviction against the present appellant and there cannot be any reason to
make any interference in the judgment & order dated 19.03.2021, passed by
the learned Sessions Judge, Tinsukia in Sessions Case No. 51(T)/2018, under
Sections 326/307 of the Indian Penal Code.
10. I have given my anxious consideration to the submissions made by the
learned counsels appearing on behalf of the parties and also perused the
materials available on record.
11. It is seen that as per the prosecution case, the accused/appellant caused
grievous injury to the victim by striking with a dao (machete) on her with an
intention to cause death to his victim wife. On the other hand, it is the case of
the defence that the evidence of the prosecution witnesses are totally
contradictory to each other which itself creates reasonable doubt on the
prosecution case and thus, the accused/appellant is entitled to get the benefit of
doubt. More so, the vital witness of the prosecution, i.e. the informant (P.W.-1)
and father of the victim (P.W.-8) did not support the case of the prosecution.
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12. Before analyzing the other prosecution witnesses or arriving at any
decision, let us first scrutinize the medical evidence of the doctor.
13. As per the evidence of the doctor (PW-11), on 22.07.2014, while he was
working as a Medical Officer at AMCH Casualty Department, the victim- Mina
Karmakar was brought to the hospital by her father- Shri Bishnu Karmakar with
alleged history of physical assault and accordingly, on the same day, at around
5.15 p.m., he examined the victim.
14. On examination of the victim, he found the following injuries:
“1. Fresh 10 cm pre-stitched wound over fronto temporal region arising from
left eyelid.
2. A fresh laceration of size 10 x 0.5 x 0.5 cm over left temporal region.
3. A fresh laceration of size 5 x 1.5 x 1 cm over left parietal bone.
4. Fracture over left forearm in middle.
5. Partial amputation of left index finger at the level of proximal phalanx.
6. Distal phalanx of left thumb amputated.
7. Fresh laceration of size 5 x 1.5 x 1 cm over None appears for the petitioner,
on call. Of neck in right side.
CT scan of head shows following reports: 1. Haemorrhagic contusion with mass
effect of left frontal lobe. 2. Fracture of left frontal bone. 3. Fracture of left parietal
bone. 4. Fracture of left roof of orbit. 5. Fracture of left zygomatic arch.
X-ray of left forearm shows compound fracture of left both bones. Nature of
injury was grievous, caused by sharp weapon.”
15. From the medical evidence as well as from the Injury Report of the
victims, it is seen that the victim sustained grievous injuries on her person
including multiple fracture injuries on her forearm, head with amputated thumb
and index finger partially amputate and other injuries including her neck, which
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was caused by sharp weapon. Thus, the doctor (PW-11) opined that the nature
of injuries was grievous one and there is no dispute over the injuries suffered by
the victim, who is the wife of the accused.
16. So, it is to be seen as to who caused such injuries to the victim.
17. PW-1 (Amar Boraik) is the complainant of the case who is the younger
brother of the victim- Mina Karmakar (PW-2). As per him, on the day of
occurrence, at about 11.00 a.m., while he was on duty and her sister/victim was
staying in his house, one of his friend- Dharmeswar Sawashi informed him that
somebody caused serious injuries to his sister/victim. Accordingly, he
immediately returned to his home and saw that his elder sister (victim) was
lying on the floor of the house with blood stains on the back of her neck, hands
and other parts of the body. She was unconscious at that time. Thereafter he
took his sister (victim) to the hospital at Dangri T.E. in a pushcart and the
doctors there referred her sister (victim) to AMCH, Dibrugarh and accordingly
his parents took his sister (victim) to AMCH, Dibrugarh, wherein she was treated
for 3 (three) weeks. On the next day, he lodged the ejahar vide Ext. 1. However,
till then, he could not know as to who caused the injuries to his sister. Thus, this
witness was subsequently declared hostile as he did not implicate the
accused/appellant in his evidence, though he lodged the ejahar against the
accused/appellant.
18. PW-2 (Mina Karmakar) is the victim of the case. She testified that on the
day of incident, she rebuked her husband, i.e. the accused/appellant, for certain
matters and in return, her husband (accused/appellant) gave a dao blow on her,
which caused injuries on her left hand as well as on her forehead. Her left hand
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thumb was also severed because of the attack of her husband. Her mother,
whose house is situated about 100 meters in front of her matrimonial house,
took her to AMCH, Dibrugarh for treatment. She also showed her injuries before
the Court, which indicated that her left hand containing two scars of cut injuries
and the left hand without the thumb as well as injury marks on her head. She
also deposed that she undergone treatment at AMCH for about 1 (one) month.
However, she is now living together with her husband and children.
19. In her cross-evidence, PW-2 stated that prior to the occurrence, her
husband never had any quarrel with her nor he ever assaulted her. On the day
of incident, her husband got provoked and caused the act only because of her
rebuking.
20. PW-3, who is the neighbor of the PW-1/complainant, deposed that on the
day of occurrence, while hearing the news about the victim (PW-2), he also
went there and saw that the victim was bandaged on her wounds on hands and
head and she was not in a position to talk. The doctors referred the victim to
Longswal Central Hospital. When the victim returned home after treatment, he
saw that one of her fingers was chopped off and there were cut injuries on her
hands. He also deposed that he had written the ejahar as per the version of
PW-1.
21. However, in his cross-evidence, he stated that he did not put his signature
on ejahar and he only wrote the ejahar as per the dictate of the PW-1. He also
did not talk with PW-2 after the occurrence.
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22. PW-4 is the cousin brother of the PW-1. As per him, on the day of
occurrence, while he was returning from his agricultural field, at about 2.00
p.m., his uncle- Sutu Murah informed him that the accused caused cut injuries
to the victim (PW-2) and by that time, the victim was already shifted to hospital,
but he did not go the hospital. He also deposed that during the incident, the
victim sustained cut injuries on the backside of her neck and her thumb was
chopped off and the police also seized the severed thumb along with some
amount of hair from the place of occurrence. He also proved his signature in the
inquest report- Ext. 2.
23. In his cross-examination, he stated that he put his signature in the Ext.-2
(inquest report) in the house of the PW-1.
24. PW-5 is also one of the neighbors of the PW-1 and as per him also, on the
day of occurrence, at about 4.00 p.m., after he returned home from his duty, he
came to know that here was a marpit in the house of the accused and for that,
the victim (PW-2) was taken to the hospital. However, he did not go the
hospital.
25. PW-6 is the mother of the complainant and the victim, i.e. PWs- 1 & 2,
respectively. She deposed that on the day of occurrence, she was not in her
house, which is about one kilometer from her daughter’s matrimonial house.
After hearing the incident, she went to the hospital and saw that her daughter
(victim) sustained cut injuries on her hand and lost her left thumb. She also
deposed that the incident happened in her house where her daughter was alone
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at the relevant time of occurrence and the accused was in his own house.
26. PW-7, who was working as Senior Medical Officer at Dangori out-garden
hospital in Talap T.E., deposed that on 22.07.2014, the victim came to their
hospital with injuries and she was initially examined by their pharmacist. But on
seeing the serious condition of the injured, he referred the victim to Longsoal
Central Hospital and he informed the police.
27. PW-8 is the father of the complainant and the victim. As per him, on the
day of occurrence, while he was working in his garden, he came to know that
his daughter (victim) was taken to Talap hospital. Accordingly, he went to the
hospital and saw that the victim had bandages on her hands, arms and other
parts of the body. Her daughter was taken to Longsoal hospital from Talap
hospital and thereafter to AMCH, Dibrugarh, wherein she was treated for about
one month. After her daughter (victim) discharged from hospital, she visited her
matrimonial house wherein he saw that her daughter had lost her left thumb
and she also suffered cut injuries on her left hand. However, this prosecution
witnesses was also declared hostile by the prosecution as he also could not
implicate the accused in the occurrence.
28. PW-9 is a neighbor of the PW-2 (victim) and he deposed that on the day
of occurrence, he heard that there was a quarrel took place between the
accused and his wife and in that incident, the victim sustained cut injuries and
when the victim/PW-2 returned home after getting treatment, he saw that she
sustained cut injuries on her neck and her hands.
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29. PW-10 is the I.O. of the case and he testified that on 23.07.2014, while he
was working at Talap Outpost under Doomdooma P.S., PW-1 lodged an ejahar,
which was received by one S.I. Amulya Gogoi, and he made the G.D. Entry No.
390, dated 23.07.2014 and forwarded the ejahar to Doomdooma P.S. for
registration of a case. Accordingly, Doomdooma P.S. Case No. 398/2014, under
Sections 326/307 of the Indian Penal Code, was registered with G.D. Entry No.
752, dated 23.07.2014, and he was entrusted with the investigation of the case.
During investigation, he recorded the statement of the complainant, visited the
place of occurrence and prepared the sketch map vide Ext.-5. At the place of
occurrence, i.e. inside the house, he found a severed thumb finger of a woman
lying on the floor of the second room of the house and the size of the finger
was one and half inch and it belonged to the injured. He also found bloodstains
on the floor of the house along with strands of human hair. He accordingly
conducted inquest of severed thumb and also recorded the statements of the
inquest witnesses. He could not find victim at the place of occurrence as she
was already shifted to AMCH, Dibrugarh. He also sent the severed thumb finger
and hair to Dangori Garden Hospital on 24.07.2014 for ascertaining as to
whether those belonged to human and subsequently received the report on the
next day, i.e. on 25.07.2014.
30. The I.O. further deposed that he recorded the statement of the victim
after she was released from AMCH on 22.08.2014. However, till that day, the
accused was absconding and finally on 30.08.2014, he was arrested and
forwarded to Court on 31.08.2014. Thereafter, he collected the medical report of
the victim from AMCH and after completion of investigation, he laid charge-
sheet against the accused, which he exhibited as Ext.-6. He also confirmed that
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the PW-1 stated before him and on 22.07.2014, at about 11.00 a.m., the
accused stabbed his sister (PW-2) seven times with a dao and thereafter he fled
away and the PW-1 also saw the left thumb of his sister was severed.
31. In his cross-examination, the I.O. deposed that he cannot say as to
whether the severed thumb finger and human hair, which was found at the
place of occurrence, actually belonged to the victim/PW-2 as he did not send
any blood samples or human hair to the FSL for serological test.
32. So, from the testimonies of the P.Ws., as discussed above, it is seen that
the P.W.-1 had to be declared hostile by the prosecution as he did not implicate
the accused/appellant in his evidence, though he lodged the F.I.R. against the
present appellant alleging that the victim was assaulted by the present
appellant, who is his brother-in-law in relation. However, this witness saw the
injury sustained by his sister (victim), who was lying on the floor of the house
with blood stains on the back of her neck, hands and other parts of the body,
and he is the person who also took the victim to the hospital for treatment.
Initially he took the victim to Dangri T.E. Hospital, but thereafter she was
referred to AMCH, Dibrugarh, where his sister was taken by his parents. P.W.-3
(neighbor of the complainant/P.W.-1), P.W.-4 (cousin brother of the
complainant/P.W.-1) and P.W.-6 (mother of the victim/P.W.-2) also saw the
injuries sustained by the victim including the cut injuries on her head, back of
the neck, hands and they also found that one of the thumb finger of the victim
was also chopped off which was subsequently seized by police. P.W.-7 & P.W.-9
also saw the injuries sustained by the victim and P.W.-7 referred the victim to
Longsoal Central Hospital and also asked the parties to inform police. Thus,
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there is no dispute that the victim sustained the grievous injury on her back of
the neck, hands and head and apart from that, she also lost one of her thumb
finger at the time of incident and the injury described by the witnesses or the
ocular evidence fully corroborates the medical evidence of the doctor (P.W.-11).
33. As discussed above, P.W.-1 & P.W.-8, the brother-cum-informant and father
of the victim, respectively, were declared hostile by the prosecution and they did
not depose before the Court as to who caused the grievous injuries on the
person of the victim whom they even brought to the hospital for treatment. It is
also quite surprising that the P.W.-1, who lodged the F.I.R., does know as to who
caused the injuries to his sister (victim/P.W.-2), though in the F.I.R. he
specifically mentioned the name of the present appellant alleging that he
assaulted his elder sister with a dao and attempted to kill her which cause
grievous hurt on her person wherein he also chopped off the thumb finger of
the victim. The victim may not be in a position to talk at the time of injury, but it
cannot be believed that she won’t disclose the name of person who assaulted
her causing such kind of grievous injuries on her person or who even attempted
to kill her. From the statement of the mother of the victim, i.e. the P.W.-6, it is
seen that though she did not implicate the appellant directly, but from her
evidence, it is seen that the incident had happened when her daughter was
alone along with the accused at the time of incident.
34. Coming to the evidence of P.W.-2, the victim and the most vital witness of
the prosecution, it is seen that she implicated the accused/appellant, who
caused injuries on her person and she also stated that her husband gave dao
blow on her various parts of the body and her left hand thumb was also severed
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because of the attack by her husband and subsequently she was taken to AMCH
Hospital, Dibrugarh for treatment by her parents. While deposing before the
Court, she also showed her injuries before the Court which revealed that her left
hand contained two scars of cut injuries and the left hand without the thumb as
well as the injury marks were also present on her head. From her deposition, it
is also seen that she was undergone treatment for about 1 (one) month at
AMCH and thereafter she was released from the hospital. But presently she is
again staying with her husband and children. From her evidence, it is also seen
that she tried to save her husband and accordingly it was deposed by her that
she rebuked her husband for certain matters and for which he gave dao blows
on her various parts of the body and apart from this incident, there was no
other incident took place earlier. But her evidence in respect of the injuries
sustained by her goes unrebutted and it is very much evident that she sustained
injury only due to attack by her husband.
35. Coming to the evidence of P.W.-10/I.O., it is seen that on the basis of an
F.I.R., he investigated the matter and during investigation, he visited the place
of occurrence, prepared the sketch map and found that the place of occurrence
was inside the house wherein he also found severed thumb finger of a woman
lying on the floor of second room of the house which was seized by him and he
also found the blood stains all over the floor along with strands of human hair.
He also conducted inquest of the severed thumb and recorded the statements
of the witnesses, but at that time, the victim was not found as she was already
taken to hospital. From his cross-evidence, it is also seen that the accused was
absconding for a considerable period and finally on 30.08.2014, he could be
arrested. Further from his cross-evidence, it is also seen that the P.W.-1, i.e. the
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informant of this case, stated before him while recording his statement that at
about 11.00 a.m., the accused stabbed his sister (victim/P.W.-2) seven times
with a dao and thereafter he fled away and he also saw the left thumb of his
sister severed. However, the I.O. did not sent the blood samples or human hair
to the FSL for serological test and hence, he could not say actually whether the
severed thumb as well as the hair belongs to victim or not.
36. Thus, it is admitted position that the victim sustained severe injuries on
her vital parts of the body including neck and head and in the same time, it is
also admitted fact that her left thumb finger was severed and the ocular
evidence of the P.Ws. in regards to her injury completely corroborates the
medical evidence of the doctor.
37. It is also an admitted fact that there was no eye witness to the
prosecution case but from the evidence of the P.W.-6 and other witnesses, it is
seen that at the time of incident the accused was present along with the victim
alone in the house. The evidence of the P.W.-2, who is the victim of this case,
cannot be disbelieved who specifically stated in her evidence that it is her
husband, i.e. present appellant, who caused grievous injuries on her person and
for the said incident, she not only sustained injuries on her vital part of the
body, but also lost one of her thumb finger.
38. The Hon’ble Supreme Court in various judgments has held that the
evidences of injured witnesses have greater evidentiary value and unless
compelling reasons exist, their statements are not to be discarded lightly. In that
context, a decision of Hon’ble Apex Court, which was reported in (2003) 10
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SCC 414 (State of M.P. Vs. Mansingh & Ors.), can be relied on, wherein in
paragraph Nos. 9 & 12 of the judgment, it has been held as under:
“9. The evidence of injured witnesses have greater evidentiary value and unless
compelling reasons exist, their statements are not to be discarded lightly. Merely
because there was no mention of a knife in the first information report. That does not
wash away the effect of evidence tendered by the injured witnesses PWs 4 and 7.
Minor discrepancies do not corrode credibility of otherwise acceptable evidence. The
circumstances highlighted by the High Court to attach vulnerability to evidence of the
injured witnesses are clearly inconsequential. Though, it is fairly conceded by learned
counsel for the accused that though mere non-mention of the assailant’s names in the
requisition memo of injury is not sufficient to discard the prosecution version in
entirety, according to him it is a doubtful circumstance and forms a vital link to
determine whether prosecution version is credible. It is a settled position in law that
omission to mention the name of the assailants in the requisition memo perforce does
not render prosecution version brittle.
12. Even if it is accepted that there were deficiencies in investigation as pointed out by
the High Court, that cannot be a ground to discard the prosecution version which is
authentic, credible and cogent. Non-examination of Hira Lal is also not a factor to cast
doubt on the prosecution version. He was not an eye-witness, and according to the
version of PW 8 he arrived after PW 8. When PW 8 has been examined, the non-
examination of Hira Lal is of no consequence.”
39. In another judgment, the Hon’ble Supreme Court in Criminal Appeal No.
1243 of 2007, Criminal Appeal No. 1399 of 2008 & Criminal Appeals
No. 1363 of 2010, which was reported in (2010) 10 SCC 259 (Abdul
Sayeed & Ors. Vs. State of Madhya Pradesh), also expressed the same
view in paragraph Nos. 28, 29 & 30 of the judgment, which reads as under:
“28. The question of the weight to be attached to the evidence of a witness that was
himself injured in the course of the occurrence has been extensively discussed by this
Court. Where a witness to the occurrence has himself been injured in the incident, the
testimony of such a witness is generally considered to be very reliable, as he is a
witness that comes with a built-in guarantee of his presence at the scene of the crime
and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
Page No.# 18/22
“Convincing evidence is required to discredit an injured witness”. (Vide Ramlagan
Singh & Ors. v. State of Bihar,5 AIR 1972 SC 2593; Malkhan Singh & Anr. v. State of
Uttar Pradesh,6 AIR 1975 SC 12; Machhi Singh & Ors. v. State of Punjab,7 AIR 1983
SC 957; Appabhai & Anr. v. State of Gujarat, 8 AIR 1988 SC 696; Bonkya alias Bharat
Shivaji Mane & Ors. v. State of Maharashtra,9 (1995) 6 SCC 447; Bhag Singh & Ors.
(supra); Mohar & Anr. v. State of Uttar Pradesh,10 (2002) 7 SCC 606; Dinesh Kumar v.
State of Rajasthan,11 (2008) 8 SCC 270; Vishnu & Ors. v. State of
Rajasthan,12 (2009) 10 SCC 477; Annareddy Sambasiva Reddy & Ors. v. State of
Andhra Pradesh,13 AIR 2009 SC 2261; Balraje alias Trimbak v. State of
Maharashtra,14 (2010) 6 SCC 673).
29. While deciding this issue, a similar view was taken in, Jarnail Singh v. State of
Punjab,15 (2009) 9 SCC 719, where this Court reiterated the special evidentiary status
accorded to the testimony of an injured accused and relying on its earlier judgments
held as under:-
“28. Darshan Singh (PW 4) was an injured witness. He had been
examined by the doctor. His testimony could not be brushed aside lightly. He
had given full details of the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of
Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of
the injured witness should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major contradictions and
discrepancies, for the reason that his presence on the scene stands
established in case it is proved that he suffered the injury during the said
incident.
29. In State of U.P. v. Kishan Chand, (2004) 7 SCC 629, a similar view
has been reiterated observing that the testimony of a stamped witness has
its own relevance and efficacy. The fact that the witness sustained injuries at
the time and place of occurrence, lends support to his testimony that he was
present during the occurrence. In case the injured witness is subjected to
lengthy cross- examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan v. State of Haryana, (2006)
12 SCC 459). Thus, we are of the considered opinion that evidence of
Darshan Singh (PW 4) has rightly been relied upon by the courts below.”
30. The law on the point can be summarised to the effect that the testimony of the
injured witness is accorded a special status in law. This is as a consequence of the fact
that the injury to the witness is an in-built guarantee of his presence at the scene of
the crime and because the witness will not want to let his actual assailant go
unpunished merely to falsely implicate a third party for the commission of the offence.
Thus, the deposition of the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of major contradictions and
discrepancies therein.”
Page No.# 19/22
40. Accordingly, the Hon’ble Supreme Court in the case of Abdul Sayeed
(supra), had expressed the view that the testimony of the injured witness is
accorded a special status in law and because these witnesses will not want to
let his actual assailant go unpunished merely to falsely implicate a third party for
the commission of the offence.
41. It is also an admitted position that at the relevant time of incident, the
accused/appellant was alone with his wife, i.e. the injured/victim, and the
injured was also found lying inside the house of the accused/appellant in the
pool of blood with grievous injuries on her vital part of the body and her left
thumb finger was also on the floor which was chopped off during the incident
and was subsequently seized by police at the time of inquest. But there is no
explanation made by the accused as to how his wife sustained such kind of
injuries on her person. He only took the plea of denial and also did not adduce
any evidence to substantiate his plea of innocence.
42. It is a settled law that Section 106 of the Evidence Act would be applicable
to cases where the prosecution could succeed in proving facts from which a
reasonable inference can be drawn regarding the offence and unless the said
presumption is disproved by the defence, the presumption can be accepted as
an inference as to the existence of the fact that the appellant had committed
the offence. In that context, a decision of Hon’ble Supreme Court can be relied
on which was reported vide 2023 SCC OnLine SC 1261 (Balvir Singh Vs.
State of Uttarakhand) wherein in paragraph Nos. 52 & 53 of the judgment, it
has been held as under:
“52. In the case on hand it has been established or rather proved to the satisfaction of
Page No.# 20/22the court that the deceased was in company of her husband i.e., the appellant-convict
at a point of time when something went wrong with her health and therefore, in such
circumstances the appellant-convict alone knew what happened to her until she was
with him.
FAILURE ON THE PART OF THE APPELLANT-CONVICT IN OFFERING ANY PLAUSIBLE
EXPLANATION IN HIS FURTHER STATEMENT RECORDED UNDER SECTION 313 OF
THE CRPC
53. We take notice of the fact that the appellant-convict (husband) has not explained
in any manner as to what had actually happened to his wife more particularly when it
is not in dispute that the appellant-convict was in company of his wife i.e., deceased. It
is important to bear in mind that the deceased died on account of poisoning. The
poison which was detected in the viscera was found to be “aluminium phosphide”.
Although, the appellant-convict tried to project a picture that no sooner the deceased
fell sick than he immediately took her to the Sanjay Gandhi Hospital at Delhi, yet,
there is no evidence worth the name in this regard. The appellant-convict was
expected to lead some evidence as to what had transpired at the Sanjay Gandhi
Hospital. He has maintained a complete silence. It is only the appellant-convict who
could have explained in what circumstances and in what manner he had taken his wife
to the Sanjay Gandhi Hospital and who attended his wife at the hospital. If it is his
case, that his wife was declared dead on being brought at the hospital then it is
difficult to believe that the hospital authorities allowed the appellant to carry the dead
body back home without completing the legal formalities.”
43. Thus, from the discussion made above, it is seen that the prosecution
could establish that it is the present appellant who caused grievous injury on
the person of the victim (P.W.-2) and for that incident, the victim also lost one of
her thumb finger. Further it is seen that the appellant gave dao blows on various
parts of the body of victim including her very vital part, i.e. neck and head, only
with an attempt to kill her, but somehow she survived. The learned Session
Judge in paragraph No. 37 of its judgment had discussed in that regard as
under:
“37. It appears that such inflicting of machete blows on the person of PW2, the
accused would have caused death of PW2 knowing fully well that by such act, he
could have taken the life of his wife. Hence, it is found that the accused dealt machete
blows to PW2 with his intention to get rid of her. But somehow, PW2 was survived.
Page No.# 21/22
Therefore, it is clear that the accused had attempted to kill PW2 by dealing her with
several grievous injuries to her person with a machete with intention to take her life.
Hence, the offence u/s. 307 IPC is attracted against the accused. Similarly, due to
nature of injuries so inflicted to PW2, it is found the accused committed the offence
u/s. 326 IPC IPC against PW2. No other view is plausible from the evidence on record.
The defence failed to generate any kind of doubt over the prosecution case.”
44. To attract the provisions of Section 307 IPC, it is the basic ingredients of
Section 307 IPC that the act should be with intention or knowledge and under
such circumstances that if by that act death is caused, the accused would be
guilty of murder. In the instant case, as discussed above, the weapon he used
and the part of the body where he inflicted injuries on the person of the P.W.-2
(victim) clearly establishes that the accused had the intention to kill his wife.
45. In view of the entire discussions made above, this Court is of the view that
the prosecution has been able to establish the case against the present
accused/appellant beyond all reasonable doubt and hence, I find that the
learned learned Sessions Judge, Tinsukia has committed no error or mistake
while convicting the accused/appellant under Sections 307/326 of the Indian
Penal Code and therefore, I do not find any reason to make any interference in
the judgment & order dated 19.03.2021, passed by the learned Sessions Judge,
Tinsukia in Sessions Case No. 51(T)/2018, under Sections 326/307 of the Indian
Penal Code, and accordingly the same stands upheld. Consequently, the appeal
stands dismissed.
46. Before parting, I put on record the appreciation for the valuable assistance
rendered by Ms. M. Barman, learned Amicus Curiae for the appellant, and I
recommend that she is entitled to a fee, as per the notified rate, to be paid by
Page No.# 22/22
the State Legal Services Authority.
47. In terms of above, this criminal appeal stands disposed of.
48. Send back the case record of the Trial Court along with a copy of this
judgment and order.
JUDGE
Comparing Assistant